Lord Falconer of Thoroton: My Lords, I was aware of the broad statistics on royal commissions. The noble Lord is right; although they were used a lot immediately post-war, they were hardly used between 1979 and 1997. They have been used twice since 1997. Some things are very suitable for a royal commission. Some of the things that they have been used for—examining spontaneous combustion in ships in 1875, or, in 1884, housing of the working classes, on which the Prince of Wales was a commissioner—look sensible. The Royal Commission on Royal Commissions in 1919 seems sensible. I do not agree that a royal commission on the tax system is a good idea.

Lord Falconer of Thoroton: My Lords, the question of police mergers is rather far away from that of royal commissions. The sense of uncertainty that a royal commission on police mergers would produce would be very bad for the criminal justice system.

Lord Foulkes of Cumnock: My Lords, does the noble and learned Lord think that it would be appropriate—to use his word—to set up a royal commission to have a systematic and considered look at the role, functions and composition of your Lordships' House.

Lord Henley: My Lords, can the noble and learned Lord assure us, bearing in mind how long we have been waiting for the Civil Service Bill, that he has not set up a royal commission on that Bill and that it is considering matters in secret?

Lord Wright of Richmond: My Lords, as the current chairman of Sub-Committee F of the European Union Committee, which has studied the issue both under the chairmanship of the noble Lord, Lord Wallace of Saltaire, in the past and under mine, may I endorse the sentiment behind his Question? Is the Minister aware that, in the context of considering the draft framework decision on the exchange of information under the principle of availability, her colleague, Mr. Paul Goggins, wrote to my noble friend Lord Grenfell on 9 January to say that he anticipated that negotiation on the Framework Decision would be informed by the Prüm treaty? Can the Minister say whether the subsequent course of negotiation has made the Government any readier to consider accession to the treaty?

Baroness Scotland of Asthal: My Lords, I confirm that what the noble Lord says is correct with regard to the approach that we are taking. He will know that the Prüm convention contains a number of issues, with some of which we readily agree and would actively seek to implement. Others, as the noble Lord will know, are far more challenging and need greater scrutiny and care.

Lord Wallace of Saltaire: My Lords, our non-formal membership of Schengen means that the extent of British engagement with the Schengen information system, the visa information system, Eurodat and various other European-wide databases is not entirely easy to discover. Will the Government commit to providing a report to both Houses of Parliament on the terms and conditions under which the United Kingdom Government now share information under a convention with which we are partly associated but of which we are not a full member?

Lord Rea: My Lords, will the Minister give a little background to the reason why the African Union force has declined logistic and air support? Will the United Nations force, which will supplant it, be able to receive that support? The six months or so before it takes over will be very dangerous, and I wonder whether it would suitable to suggest to the African Union forces that they think again about receiving our logistical support.

Lord Grocott: My Lords, we do not know whether it is a minority or majority view in this House; we will have to wait and see. There are all sorts of possibilities, but this House has the opportunity to debate the matter on the Floor of the House on Report and at Third Reading. That is two opportunities, which is pretty reasonable.
	On the wider point raised by the noble Lord, Lord Elton, I could bore the House rigid with the volume of legislation over the past 30 years if I had my notes with me, but I can assure him that there is no dramatic difference between the numbers of Bills introduced and Queens Speech during this Government in comparison with the figures for the previous 18 years under the Conservative government. Off the top of my head, there are between 31 and 33 Bills, of varying degrees of complexity. We could run through the contentiousness and complexity of Bills under the previous government but I do not think it would get us very far. Frankly, if there were anyone in the Chair this discussion would be ruled grotesquely out of order already, as we are meant to be debating the Motion on the Health Bill. But I have trespassed and I am sure everyone else has as well.
	My noble friend Lord Taylor mentioned the politics of the House and what used to happen in the old days, with regard to the number of opposition parties and the size of the government party. I would put every Bill on to the Floor of the House if I could have a majority of about 200, which is what the previous administration had in this House. It does help a little but we must not trespass into the political arena.
	I take very seriously the point about whether we could split Bills, with one part discussed on the Floor and another discussed in Grand Committee. First, the Procedure Committee has ruled against this; furthermore, it would add unbearably to the burden of the usual channels. The usual channels do not get a vast amount of sympathy here or anywhere else, but if, on every single Bill, in addition to the nightmare which we are experiencing of a debate about whether it should be in Grand Committee, we then had a debate on which part of the Bill should be in Grand Committee and which should not, some of us would really despair about how we could ever get the business organised through the House. I am sure that we are a good, friendly, self-governing House and we can move on to the next business.

Lord Goldsmith: My Lords, in moving Amendment No. 1, I shall speak also to Amendment No. 2. It has always been the Government's intention that the Clause 2 offence should apply to representations made to a machine just as it applies to representations made to a person. However, having reflected on the Bill since Committee, we have concluded that as the Bill stands, it is not entirely certain whether the Clause 2 offence would apply equally to representations made to a machine as it does to representations made to a person.
	In a letter that I wrote on 15 October of last year I set out how these amendments will clarify the offence to make sure that false representations made to machines would be a crime under the new general offence of fraud. It is clear—and it is stated in the Explanatory Notes to the Bill—that the Clause 2 offence extends to false representations posted on a website. Even if the representation is not read by another person, the information, once transferred to a website, is open to be read and intended to be read by others. The position is not so clear for representations made to a machine, which in some cases may never be read by a person.
	In its report, the Law Commission notes that it is arguable whether there is a false representation if data are inputted into a machine even if there is no deception of a person. So there is potentially an element of uncertainty here. The commission was naturally very conscious of the problem of representations to machines, but its view was that the problem would be resolved by Clause 11 as it arises only in relation to services; they are not property and hence cannot be the subject of a theft charge.
	The Clause 11 offence should indeed be used in cases where services have been dishonestly obtained, but on one reading of Clause 2 as it stands, the prosecution might need to rely on a charge of theft where property has been obtained by inputting data into a machine. We consider that it would be undesirable to differentiate between cases where property is obtained fraudulently by a representation made to a machine, which in practice operates on behalf of a person, and where the representation is made directly to a person. For example, we see no need to distinguish between a credit or debit card tendered to a machine in cases where the card is tendered to a person. Indeed, in many everyday situations it is a combination of the two and, increasingly, the sales assistant takes a back seat while the customer inputs the PIN into the card machine.
	The Law Commission said that its new offence would apply even if the person to whom the card is tendered is indifferent as to whether the representation to him is false, but it may not always be clear in such cases whether the representation is actually made to an indifferent sales assistant or simply to the machine. For example, on occasions the sales assistant may not even look at the card as the card owner himself inserts the card into the machine and enters the PIN. The practical difference between a person misusing a credit card before a sales assistant indifferent as to whether a representation is false and a representation being made without the presence of any assistants seems to us to be negligible.
	We do not want law enforcers to face unreasonably technical choices in making charges and we consider therefore that the Bill should make it clear that a false representation should be an offence whether made to a machine or to a person. This is done by making amendments to provide expressly that representations may be implied and that a representation may be regarded as being made where it or anything implying it is submitted to any system or device, the aim being to clarify, for example, that the entering of a number into a chip-and-pin machine is a representation.
	The Clause 2 offence, like the other limbs of the general offence of fraud, is offender-focused. It avoids the need to identify a victim who has been deceived by the actions of the offender. These amendments would ensure that the operation of the offence is properly aligned with this underlying principle. I beg to move.

Lord Goodhart: My Lords, this amendment introduces into the Bill the abolition of the offence of conspiracy to defraud. In moving the amendment, I wish to speak also to Amendments Nos. 5 to 16 inclusive. Of those, Amendments Nos. 7 to 16 are purely consequential and I shall not mention them further. Amendments Nos. 5 and 6 create a sunrise clause which, for reasons I shall explain later, would delay the implementation of the abolition of the offence of conspiracy to defraud for a period of not less than three years.
	The Bill creates a number of new offences and for the first time makes fraud a statutory offence and defines it. Whenever there is a statutory offence, conspiracy to commit that offence is itself an offence—and that is as true of the new offences in this Bill as it is of any other statutory offence. The amendment would not prevent the conviction of those charged with conspiracy to commit any of the statutory offences. It refers merely to the common law offence of conspiracy to defraud. It is said that, as regards conspiracy to commit a statutory offence, there are procedural problems, but these are being reviewed by the Law Commission in its current work on the laws relating to participation in crime, and it is to be hoped that we will have its recommendations quite soon.
	The offence of conspiracy to defraud is a common law offence, which means that it has been created by the decisions of judges and not by an Act of Parliament. It is an offence that is anomalous because defendants can be convicted of conspiracy to defraud even if what they have done would not be an offence at all if it was done by one person alone. The Law Commission, in its 1976 report, said emphatically:
	"The object of a conspiracy should be limited to the commission of a substantive effect, and there should be no place in a criminal code for a law of conspiracy extending beyond this ambit. An agreement should not be criminal where that which it was agreed should be done would not amount to a criminal offence if committed by one person".
	In its latest report from 2002, which led to this Bill, the Law Commission said:
	"This Commission has repeated its adherence to this principle in subsequent reports and we believe it commands very wide support. Either conspiracy to defraud is too wide in its scope (in that it catches agreements to do things that are rightly not criminal), or the statutory offences are too narrow (in that they fail to catch certain conduct which should be criminal), or—which is our view—the problem is a combination of the two. On any view, the present position is anomalous and has no place in a coherent criminal law".
	Later in the 2002 report, the Law Commission said:
	"If it is thought that certain torts, breaches of contract or equitable wrongs should be criminal, legislation can be framed with reference to the particular kinds of conduct involved. To retain conspiracy to defraud on the grounds that it might occasionally prove useful in certain cases would, in our view, be an excess of caution. Since it is not practicable to identify all such cases in advance, it would mean that we could never be in a position to abolish conspiracy to defraud, unless we were willing to replace it with a general dishonesty offence, an option that we rejected in Part 5, above. The advantages of abolishing it, in our view, greatly outweigh any possible advantage that might accrue from retaining it alongside the new offences we recommend. We believe that those offences cover enough of the ground presently covered by conspiracy to defraud to make it unnecessary to retain that offence any longer".
	The offence of conspiracy to defraud may indeed have unexpected and unwelcome consequences. Let us take price fixing—a business cartel—as an example. Price fixing was not, I believe, an offence in the United Kingdom until 1998. However, the Americans have successfully argued in an extradition case that a price fixing agreement entered into before 1998 was a conspiracy to defraud in English law and therefore met the test of dual criminality necessary for extradition. This was totally unforeseen and shows the enormous degree of uncertainty that makes conspiracy to defraud an unsatisfactory offence. From the point of view of the prosecution, it may be that this very uncertainty makes it attractive, but this contravenes a basic principle: that the law—in particular, the criminal law—should be certain.
	Until now there has been no statutory definition of fraud. We now have one in Clauses 1 to 4 of the Bill. That makes it plainly inappropriate to have an offence of conspiracy to defraud involving acts that do not amount to fraud under the statutory definition. It is possible that the courts might decide that it was no longer appropriate to charge people with common law conspiracy to defraud now that we have a statutory offence of fraud.
	I am well aware that the views of the Law Commission have not met with unanimous approval. I have noted, in particular, the views of the Rose committee, chaired by Lord Justice Rose. I understand that and see that it has an arguable case. I believe that the Law Commission has made a convincing case for the abolition of the offence, but I would not object to a trial period to see whether the new offences are effective and whether there is still a need to make use of the common law offence.
	The Government, indeed, have said that it is their aim to abolish the common law offence of conspiracy to defraud in the long term. The noble and learned Lord the Attorney-General said in Committee that,
	"the Government commit to review the operation of the Act three years after its implementation".—[Official Report, 19/7/05; col. 1447.]
	I am certainly happy to accept the three years as being a reasonable trial period. Therefore, our Amendments Nos. 5 and 6 would put on the face of the Bill a prohibition on bringing into force provisions which would abolish the offence of conspiracy to defraud within that three-year period. That does not, of course, mean that the provision will come into force at the end of that period; further time will be needed for review, for example. However, the inclusion of these provisions on the face of the Bill would, I believe, put some pressure on the Government—which, by that time, may not be the present Government—to proceed with a review soon after the three-year trial period has ended. It would also mean that if the review showed that the common law offence was not needed, provisions to abolish it could be brought into force by a simple commencement order. It would not be necessary to wait for an appropriate Bill and to tag these provisions on to it, which might take considerable time.
	If the review showed that the common law offence was still needed, the Government could simply leave the provisions uncommenced and repeal them at a suitable moment. Enacting these provisions again is unlikely to be a priority and, if they are taken out of the Bill, I believe that there is a real risk that they will be ignored by future governments and we will be left for the foreseeable future with an anomalous and uncertain offence. I beg to move.

Lord Kingsland: My Lords, I spoke on this matter, at inordinate length, during the Second Reading debate on 22 June 2005 and in Committee on 19 July 2005.
	As your Lordships are aware, under the offence of conspiracy to defraud, it can be a criminal offence for two people to agree to do something that would otherwise be lawful. That poses the following problem to our legal system. The jury's decision on dishonesty determines whether a particular set of facts is a crime. In more technical language, the decision on the mens rea of a crime in a court determines the constitution of the actus reus of a crime, so an activity can be made fraudulent simply because of the jury's decision on dishonesty.
	The consequence of this is that it delegates to the jury the responsibility for defining what activity is fraudulent, and that is really the task of Parliament and not the jury. It also enables the prosecutor to prosecute in a criminal court for an activity which the prosecutor thinks ought to be a crime but is not defined as a crime on the statute book.
	It is because of this underlying defect—I would say a constitutional defect—in the definition of conspiracy to defraud that the Law Commission in its latest report stated, unequivocally, that the offence ought to be abolished. It also established—in my view, beyond peradventure—that the new definition of fraud is so comprehensive that it covers all the circumstances in which, previously, the offence of conspiracy to defraud had been deployed.
	There are, however, circumstances that the new offence might not cover, and the example given by the noble Lord, Lord Goodhart, is one of the more important ones. I submit, however, that if the Government want to make the offence raised by the noble Lord, Lord Goodhart, an offence in criminal law—which they ultimately did, in 1998—they should do so in terms and not retain an ill-defined discretion to pick and choose what particular set of facts will be a crime in particular circumstances.
	In principle, I would be for following the recommendation from the Law Commission today. However, I recognise—as did the noble Lord, Lord Goodhart—that a number of authoritative bodies have suggested that there may yet be a role for the offence of conspiracy to defraud. I have said, both openly and in private to the noble and learned Lord, Lord Goldsmith, that I have been particularly influenced by the views of the committee chaired by Lord Justice Rose—the finest criminal judge in the country. Therefore, the proposal made in the amendments gets the balance right. Let us see what happens—and whether there is still a need for the offence—then review the whole matter in three years' time. I hope that the noble and learned Lord the Attorney-General will respond constructively to the debate that has just taken place, as I would not want the Government and the Opposition to be confrontational on all this.
	In my submission, the offence ought not to be on the statute book. If the Attorney-General still doubts that—since he is not only leader of the criminal Bar, but the Government's adviser on all these matters—then his views should be given real weight. Yet the Law Commission has looked into it in intimate detail and its view should equally be given great weight. In my view, it should prevail after a period of three years.

Lord Goldsmith: My Lords, we return to a topic which we have debated at some length, most recently—albeit some time ago—on 19 July 2005. The essential argument against prospective repeal is that we do not yet have a clear picture of whether repeal is possible and, if so, whether ancillary changes to the law are needed. Let me just make good that latter point; the noble Lord, Lord Kingsland, who has recently spoken, said, if I may paraphrase, that the Law Commission took the view that there was nothing that could not be prosecuted under the new offences that could not be prosecuted under conspiracy to defraud. The noble Lord shakes his head; rightly, if I misunderstood him, as that is not what the Law Commission said. It recognised that the new offences would not cover everything for which conspiracy to defraud could be used. I give way to the noble Lord.

Lord Goldsmith: My Lords, then we are in agreement on what the Law Commission said. The Law Commission recognised that some of the things that would not be covered were things that it accepted there was a good case for saying should be criminal. I make this point at this stage because I have said that we do not yet have a clear picture of whether repeal is possible, and if so whether ancillary changes to the law are needed. Despite the fact that this point has arisen at Second Reading and in Committee, no one has come forward with amendments proposing changes that would go along with the repeal of the common law offence of conspiracy to defraud so as to fit those gaps. I will come back to that—it is one of the disadvantages of a prospective repeal, because we have not identified those gaps perhaps with sufficient precision to be able to say what would need to be put in their place.
	The most important point is that we are not yet in a position to draw conclusions from the operation of the new fraud offences. We intend and hope that when the Fraud Act is in force, it will be the primary tool used to prosecute fraudsters. The offences in the Bill, and the charge of conspiracy to commit them, should be flexible enough to cover a wide variety of fraudulent activities, some of which have until now been difficult to capture. Aside from the new general offence, the offences of possessing and making articles to commit fraud and of fraudulent trading applicable to businesses other than companies will assist law enforcers to tackle frauds that previously may have required to be dealt with under the common law.
	I have said before that we need to retain common law conspiracy to defraud for two reasons. We have spent a lot of time looking at this. It has meant not just that noble Lords have focused more on this, but we have focused more on this. I certainly have done so in detail. If anything, I am more persuaded at this point than I was before that we need to retain common law conspiracy to defraud for the time being. First, it has a broad practical application that the Bill's offences may not be able to reproduce in every case. The flexibility of the common law offence is most effective in containing the detail involved in very large and complex cases, where there may be many defendants and multiple counts on an indictment. The conspiracy to defraud offence provides the ability for the prosecution to reveal and for the court to see a fraudulent course of conduct from beginning to end.
	On 19 July, I identified some of those people who had taken the view and responded to the Government's consultation by saying that the common law offence should not be repealed. They included, and that had been apparent from the start, those prosecutors who are charged with the responsibility of prosecuting these offences, the Crown Prosecution Service and the Serious Fraud Office. It went beyond that to the Association of Chief Police Officers; the Fraud Advisory Panel, which has a wide and experienced membership; the Law Society; the Confederation of British Industry; the NHS Counter Fraud and Security Management Service; the British Bankers' Association; the Association for Payment Clearing Services; and the British Retail Consortium. Quite a number of different bodies have supported it.
	I referred also to the Rose committee in particular. The noble and learned Lord, Lord Lloyd of Berwick, asked me at that stage whether there was any record of what the Rose committee had said. I undertook to follow that up, and I sent to him and to others who took part in the debate the views of Lord Justice Rose and his committee in a letter dated 26 July 2005. As it has been referred to by all those who have spoken so far, it is right that I should put on the record what Lord Justice Rose wrote. He said:
	"It would be risky to repeal common law conspiracy to defraud as it can be the most effective charge in a case where multiple defendants are engaged in a fraudulent course of conduct. There are limitations on the law of statutory conspiracy, which has had something of a chequered history. All the judges present at the meeting agreed the Bill should not repeal common law conspiracy to defraud".
	I find that a very strong endorsement of where we stand at the moment and of the approach that we ought to adopt.
	We will all recall the legislative solutions that we have proposed in the past to solve all problems, but which turned out, in the event, not to do so. This may have been in the mind of the Rose committee at the time. The Theft Acts themselves come into that category; they had to be amended several times and we are now making an even more radical change. It may therefore be cautious of us to want to retain the offence for the time being, but the caution is well supported by those who know what they are talking about. It is an appropriate caution in a serious matter.
	The alternative—I used the word on the last occasion—would be irresponsible. In the face of prosecutors, police and senior judges saying that this is a risk, it is not a risk that I am prepared to take. Nobody who is serious about prosecuting fraud—as I hope the whole House is—would want to take that risk.
	Nor do we want to add to the real problems we already face in the management of some trials of large or complex cases. We are grateful for the steps that the Lord Chief Justice has taken to address this issue in the protocol for the control and management of heavy fraud and other complex criminal cases. Yet it is too early to reach a conclusion on its affect. We will return to that in the course of this Bill. We also hope that the provisions on multiple offending in the Domestic Violence, Crime and Victims Act, which we plan to implement this year, will have an impact on the management of complex fraud trials. Yet we need experience of how that operates before we can conclude that it has had the affect that we hoped for.
	The second reason not to repeal the common law is that there remain some specific forms of conduct that can be prosecuted only as conspiracy to defraud. One reason for that is the problem with statutory conspiracy, because of the limitations in that area of the law. In Committee, and in a letter sent out before that stage, I explained—probably at too much length—some of the problems. A particular problem is where the final offence is committed by somebody outside the conspiracy. A number of people can conspire together, the purpose of which is to ultimately enable someone else to commit an offence. If that person is outside the conspiracy, then they cannot all be charged as part of a statutory conspiracy. Statutory conspiracy also requires a degree of knowledge of the substantive offence to be committed. I have done my best to draw attention to what these problems are; I set it out in the letter, I explained it in the House, and I held an open meeting to which I invited all noble Lords who were interested to hear from technical experts so that we could go into these problems. Unfortunately, only the noble Baroness, Lady Anelay, was able to attend that meeting, but I have done by best to demonstrate the problems. I therefore strongly urge the House to recognise the undesirability of removing this offence for the time being.
	The noble Lord, Lord Goodhart, would say that this is not what he is doing, because he leaves a minimum three-year period before the repeal would come into effect. That is not a satisfactory conclusion. It is not tidy, as far as legislation is concerned, to put prospective repeals on to the statute book. I certainly do not think that it is a good way of proceeding when one of the reasons for waiting is to see what gaps, if any, the new offences throw up. Surely the right way to proceed is to review the operation of the new offence, and see whether it establishes not only that the common law offence can after all be repealed, but also what changes may need to be made to go along with that, by bringing certain other offences into statute, and so forth.
	I recognise two things: first, that it is necessary to review the operation of the act. I have made that clear, and that the act will be reviewed in three years' time, as the noble Lord, Lord Goodhart, says. That is where he gets his three years from. It will be reviewed. Secondly, I propose to recognise the concerns that some noble Lords have expressed about the overuse of conspiracy to defraud by giving guidance to prosecutors when the new Act comes into effect, outlining the criteria to be considered before they use the common law offence. It will ask prosecutors to consider first whether the behaviour could be prosecuted under statute, under the Fraud Act 2006, or under some other Act as a statutory conspiracy. It will also outline the cases in which the common law charge may be appropriate and—noble Lords may think this important—will ask prosecutors to record their reasons for using the common law charge in any case for which they do so. That will have two benefits: it will ensure that the reviewing prosecutor has focused his or her mind on why the common law offence is the right one to use in that case; but it will also provide us with a record which we can then use to inform our further deliberations in three years' time.
	I am concerned that prospective repeal would create difficulties, leaving us with a degree of uncertainty in the law by having something on the statute book which might or might not come into effect. Prosecutors have to plan how they will deal with offences. These offences take time—quite some time, in some cases—to investigate. Knowing what charge you are going to be able to bring is important.
	I will be happy to share with noble Lords a working draft of the guidance, if that will be helpful, but I urge noble Lords to see that my proposed review guidance, which will help to inform that review, ought to meet their concerns. It ought to be a happy compromise from our current position.

Lord Thomas of Gresford: My Lords, I understand that it is the Home Secretary's intention to abolish jury trials in complex fraud cases through a stand-alone Bill, and not to proceed under Section 43 of the Criminal Justice Act 2003. Your Lordships will recall that the noble and learned Lord the Attorney-General announced in June last year that he would introduce measures in both Houses to activate Section 43. We started that process but it will not now be completed.
	We on these Benches cannot agree that it is necessary or desirable to abolish juries in complex fraud cases. It is not thought to be in America. The trial of the two top people in Enron started in Houston, Texas at the end of January on 31 counts of conspiracy, fraud, insider trading and lying to auditors. In this country, counsel would then think that it would be a two-year case with, no doubt, return work for a considerable time. What is the estimate for the American case? Four months. A jury was chosen in a single day out of a jury panel of 100 and the case is now well under way.
	That raises the question: why do trials in this country in this type of case take such a long time and cost so much? Your Lordships will recall the Jubilee Line trial with six defendants. It collapsed after 18 months—sickness and jury problems, lengthy delays and disruption dogged the proceedings so much that a fair trial became impossible.
	I do not believe that it is the fault of the jury or the jury system. From experience, I know that if we were to maintain the same procedures as we had then in a trial before a single judge, not much would be gained. It is the procedures, which are hoary with age, that require to be looked at with a fresh eye. A criminal trial is deemed to commence when the jury is sworn and put in charge of the defendants. Everything that has gone before is regarded as a mere preliminary. In my view, a significant part of the trial should be completed before the jury is ever chosen and the calling of oral evidence begins. That is in accord with the Lord Chief Justice's introduction on 22 March last year of a protocol for the control and management of heavy fraud and other complex cases.
	The noble and learned Lord referred to that in the debate on the previous amendment. From the point of view of this amendment, it was interesting to hear him say that it would be appropriate to have some time to see whether that protocol works. The proposal to abolish jury trials before the protocol has had the slightest chance of proving its worth is entirely premature. From what the noble and learned Lord said a moment ago, he might agree. The protocol gives guidance on case management, disclosure, abuse of process, and so on. It has the advantage of being flexible and can be changed from time to time as practice develops. However, the protocol does not have any statutory backing and cannot change the substantive law.
	The purpose of my amendment is to create specific criminal procedure rules for complex fraud cases. It may be said by the noble and learned Lord that the Criminal Procedure Rules Committee already has power to make special provision in special types of cases. It seems to me that the complex fraud case requires rules of its own so that special procedures can be brought in. If those rules are brought into being, they will ensure that the issues are completely clear and open prior to the trial before the jury. No more would the defence hug to itself the nature of its defence and fail to disclose it. There should be a statement of case by both sides, agreement of facts and documents and disposal of all the issues which otherwise clutter up and delay the trial before the jury.
	I consider it important that there should be a statutory framework for the indications of sentence by the trial judge on a plea of guilty. That is normally called plea bargaining. In no other case can there be so much saving of public money and court time than in these fraud cases which take so long. The process of plea bargaining has historically in this country been in disrepute on the basis that it places too much pressure on an innocent man to plead guilty and to settle for a lesser sentence. But there are, and always have been, considerable negotiations prior to trial between counsel on both sides as to the specific charges and the factual basis of a plea of guilty if one is tendered. So there is already a degree of plea bargaining in the system, and has been for as long as I can remember.
	However, indications of sentence are not done openly. In my experience, indications of sentence have always been made. In the old days, the judge's clerk was the important conduit of information, but hints and winks give rise to misunderstanding. The climate has now changed completely. I look for a more open and transparent system. In the case of Goodyear in April of last year, a five-judge court of the Court of Appeal headed by the Lord Chief Justice and the Deputy Lord Chief Justice said:
	"We cannot, and do not seek to, water down the essential principle that the defendant's plea must always be made voluntarily and free from any improper pressure. On closer analysis, however, we cannot discern any clash between this principle, and a process by which the defendant personally may instruct his counsel to seek an indication from the judge of his current view of the maximum sentence which will be imposed on the defendant. In effect, this simply substitutes the defendant's legitimate reliance on counsel's assessment of the likely sentence with the more accurate indication provided by the judge himself".
	So the climate has changed dramatically and plea bargaining involving the judge is now countenanced by the Court of Appeal. It seems to me that it would be right and proper, particularly for this type of case, to introduce a statutory framework.
	With regard to procedures at trial, the amendment sets out significant procedural reforms. Juries are vetted now for their criminal records and, in relation to terrorist offences, by the security services. Questions are asked frequently of jurors where there might be bias. I recall the case of Shankland and Hancock, miners in the miners' strike, and the death of a taxi driver as a result of a concrete block being thrown over a bridge. I recall the late and lamented Lord Williams of Mostyn on behalf of the defence asking the judge whether he could exclude anyone from the jury who was related to taxi drivers. For the prosecution, I said that I was not seeking to remove people who were related to miners, so we got on with it.
	The point is that there always has been an attempt to see whether there is any inbuilt bias. I see no reason why in a fraud case inquiries cannot properly be made of the jury panel as to basic literacy, numeracy and familiarity with the English language, depending upon the nature of the case. Indeed, I note that the consultation paper put out by the Government in 1998 envisaged jury vetting in this type of case, to see whether the jury will understand. At the moment, the only check is if a juryman stumbles when he takes the oath—frequently, he will then be asked by the judge to excuse himself if the case involves a lot of documents. There is no other opportunity for testing the competence of the juror. Noble Lords will see that I have therefore included in this amendment a provision to consider the vetting of juries.
	The order of speeches in a criminal trial dates back to Lord Denman's Act—to Section 2 of the Criminal Procedure Act 1865. If the jury would grasp a complicated case by hearing counsel from both sides set out their stall at the beginning, there is no reason why opening statements from both sides should not be made. That is thought to be heretical at the moment, but there is no reason why it should not happen, as it does in other common-law countries. I also suggest in the amendment that there should be time for private consideration by the jury of all the documents, opening statements, agreed facts and so on. There is no reason why the jury should be plunged directly into the oral evidence.
	I also refer to questioning by the jury. Questions can and frequently are asked by juries now, but they are in no way encouraged. There is almost no case law on this. I think that there is a brief reference in an 1896 case, but only in one modern case was it raised as a ground of appeal—the case of Barnes in 1991. In that case, the judge was dissatisfied with the cross-examination of the defendant by prosecuting counsel and invited the jury to formulate additional questions. Lord Justice Russell, in the Court of Appeal, said that the practice of inviting juries to ask questions was generally speaking to be deprecated, because they are not familiar with the rules about evidence and might ask questions which would be difficult to deal with. The appeal failed, but the case turned on its own facts. In a complex case, by contrast, surely it would be sensible to put aside time to answer queries raised formally by the jury at any stage of the trial. Communication is a good thing. Their questions might well throw up misunderstandings that can be quickly cleared up or points that can be answered by the evidence.
	I do not suggest that this amendment contains an exhaustive list of procedural improvements. A significant shortening of trials might arise from another quarter—the Government's other proposals gradually to reduce refresher fees to counsel as the days draw on. Before Third Reading, the Government might like to take time to consider the existing protocol that has been issued by the Lord Chief Justice—bearing in mind, as the noble and learned Lord the Attorney-General said, that it has not had time to work—backed by procedural rules that can make substantive changes to current procedures. I suggest that that is a better way forward. Before this Government make another of their never-ending attempts to abolish the fundamental principle of jury trials, they should see whether these less drastic reforms will bring the improvements in time and cost that they want and that anyone who is concerned with the efficient and proper dispatch of the processes of the criminal justice system also requires. I beg to move.

Lord Lyell of Markyate: My Lords, I am most grateful to the noble and learned Lord. Wrinkles are helpful: one should be sensitive to every mark and move in a debate. The noble and learned Lord is absolutely right. Although there was a great deal of reference by government to that after the Jubilee Line case—it certainly came out in the newspapers that one solution was going to be to abolish the jury—I will rapidly accept if he tells me so that it did not come from the Attorney-General's Chambers. However, it certainly figured in newspaper reports at the time and the Jubilee Line case is an exact example of the kind of case where no one could have suggested that it was the fault of the jury.
	The highest one could go—even this would be a bad point—would be to say that the fact that one has to explain things to the jury or that one has to argue things in the absence of the jury in some ways complicates the case, but I put it no higher than that. The Jubilee Line case, to have it on the record, was supposed to take 18 months. It was still going on after two years and the prosecution case had not even been concluded. In the last seven months of the case the jury got into court on only 13 out of 91 days. I take those figures from The Guardian newspaper and they may or may not be accurate, but that was what was stated in the public prints; it is quite instructive.
	Again I have made efforts and I look to the noble and learned Lord the Attorney-General to tell us when we are going to see the CPS Inspectorate's report on the case. One of the things that the noble and learned Lord the Lord Chancellor said at that time was that he was determined to put an end to fraud cases that took 18 months or longer. Will he in his winding-up speech tell us whether we can have an end to 12-month inquiries into collapsed cases? We are coming up to the anniversary of the collapse of the Jubilee Line case and we are waiting to hear what the CPS Inspectorate thinks about it and to have the opportunity to reflect on its analysis. I close on the key point, to which I return: for 10 years, from 1987 to 1997, I looked at every serious complex fraud case that collapsed. In every case it was a combination of over-complexity, as it was with the Jubilee Line case. The word on the street among my friends at the criminal Bar is that the essence of the Jubilee Line case was corruption and it was complicated by a complex addition of fraud charges. It could probably have been dealt with a great deal more expeditiously and simply.
	Mr Stephen Wooler and his colleagues will be reflecting on that matter and I am sure they will answer that point among others. The other point is that it is important to have a judge who is an expert in the field. The judge in that case was deeply respected and a fine ordinary criminal judge—by saying "ordinary criminal" I do not mean that that is any less clever-clever, or anything else, but it is different from having experience of long and complex fraud cases. She was invited to take on the case in her 69th year—her last case. In the management of such matters one has to be careful who one asks to do things and at what stage in their career, because the combination led to the problem. That is not new; it had happened before in one form or another in all of the serious complex cases that collapsed between 1987 and 1997. The blame should not be laid at the door of the juries, and our liberties, which depend so strongly on the jury, should not be swept aside.

Lord McCluskey: My Lords, I hope I have been forgiven for my impertinence in coming from Scotland and speaking in this debate, not having spoken earlier, although there might be advantages in coming from a different jurisdiction with quite different rules. I am emboldened to speak by an experience that I had some 30 years ago, when I prosecuted what was then the longest fraud trial in Scotland in 1964 or 1965; indeed, it was the longest trial of any kind in Scotland for more than 30 years—it lasted 18 days. That is a rather different type of trial from the Jubilee Line or others mentioned by Lord Roskill.
	I looked with great care at Lord Roskill's report—I have no doubt that many of your Lordships are extremely familiar with it. According to my analysis of the perhaps 28 types of fraud that were specified and analysed in that report, almost all—I think 27 of them—depended on proving that someone had forged a signature, substituted a false document, destroyed documents or something of that kind. Ultimately, the point tends to be rather simple. For that type of reason, I support the principle behind this amendment proposed by the noble Lord, Lord Thomas.
	Even complex fraud cases turn on one or two fairly simple points which can be demonstrated with appropriate skills to juries. In Scotland, we are so confident in the capacity of jurors to pick up the point that we do not have opening speeches in jury trials. I have always argued that it is important for the jury to understand the case not at the beginning, but at the end of the trial. The speech can introduce only elements of prejudice. I would maintain that position even in relation to matters of fraud.
	In my time at the Bar, which now exceeds half a century, there have been enormous advances in the technical aids available. I have seen television used very skilfully, and other technical aids used which enable juries to understand what is going on. I have written about this final point previously. Lawyers who practise in front of courts have an immense amount to learn from television presenters. You can watch a television programme for 30 minutes, an hour, or an hour and a half, and can discover all that you need to know about Enron or any other big fraud case. It is time that lawyers, including judges, learnt the skills that journalists bring to the presentation to the public of complex matters on television. For those general reasons, I hope that your Lordships will forgive me for rising to support the principle behind the amendment.

Lord Goldsmith: My Lords, the amendment moved by the noble Lord, Lord Thomas of Gresford, would repeal a provision that was enacted two years ago and replace it with another which, as I shall explain, will add little or nothing to the law as it stands and would, in the Government's view, be ineffective in dealing with the problem presented by very long fraud trials.
	Section 43 of the Criminal Justice Act 2003 provides that in a small number of complex fraud cases, where strict statutory criteria—including the approval of the trial judge and the Lord Chief Justice—have been met, the trial may take place without a jury. The implementation of Section 43 was made subject to the unusual requirement of the affirmative resolution process of both Houses, explicitly an order to enable discussions to take place with the parties opposite about possible alternatives to trial by judge alone. I do not want to raise the temperature in the House by labouring the point too much, but the noble Lord, Lord Kingsland, knows well that I do not agree with him on the interpretation of what was said at the conclusion of that Bill. In particular, I do not agree that there was any undertaking that the implementation of Section 43 would only take place through primary legislation; quite the opposite. However, a year ago I chaired a seminar intended to be the forum for the discussions promised.
	Your Lordships may recall that last June, when I announced the Government's intention of seeking to implement Section 43, there was some discontent about the manner in which we had made good our undertaking again. I will make it clear: I do not and I have never accepted that discontent. Be that as it may, the point was raised again when the order was debated in Committee in another place. It therefore seemed desirable to have another attempt at engaging with the parties opposite. I have been happy to do that and a meeting took place on 25 January. I had hoped to be able to say that as a result of that meeting, agreement had been reached on the terms on which Section 43 of the Criminal Justice Act could be implemented. I put forward a number of possible modifications that the Government would have been content to make to the statutory arrangements, and there was some indication that these, taken together, might prove acceptable to the opposition parties. I very much regret that, to date, it has not proved possible for them to agree such a compromise.
	The noble Lord, Lord Thomas of Gresford, argues that trials could be reduced in length by special procedures of the kind set out in his amendment, which he considered would promote better case management. But much of what he proposes has already been done. Case management tools are already available in serious fraud cases. For example, in the type of serious or complex fraud we are discussing, a preparatory hearing under the Criminal Justice Act 1987 almost invariably will be held. In those circumstances, I do not understand what his proposal for management hearings for complex fraud case trials adds to what is already provided. Under the 1987 Act the judge already has extensive powers to regulate how the prosecution presents its case as well as powers to order the defence to identify its objections. Many measures are already in place to ensure better case management. They can be found in the Criminal Procedure Rules or in the last Lord Chief Justice's protocol for the control and management of heavy fraud and other complex criminal cases. Again, there they are.
	Not for a moment do I deny the importance of applying good case management tools. I am strongly in favour of that, and have said so on a number of occasions, but I waited to hear from the noble Lord, Lord Thomas of Gresford, which of the provisions in his amendment actually adds something new to rules which already exist, to powers which already exist, or to rule-making powers which already exist. He spent some time on the issue of indications of sentence, but as he himself has recognised, a five-man Court of Appeal—it is an important event when a five-man court sits specifically in order to consider making a change to practice—decided in Goodyear that sentence indications, on the application of the defendant, as the noble Lord's amendment says, should be possible. They so decided and to my certain knowledge—and no doubt to that of the noble Lord as well—it is now happening in courts up and down the country. There may be differences of view on whether it is a good idea, and I note the points made by the noble and learned Lord, Lord Ackner; I certainly do not think they are a bad thing. On the contrary, I agree with the noble Lord, Lord Thomas, that they are desirable, just as I agree it is desirable that, if possible, there should be agreements on schedules of relevant facts and issues, and that statements should be made by both sides. That is set out specifically in the protocol of the noble and learned Lord, Lord Woolf: there should be statements of case.
	The noble Lord, Lord Thomas, said it would be a good idea if the defendant made an opening statement. I have been in court when such things have happened. It is not regular, but nothing at the moment would prevent it taking place. So while I do not deny the desirability of good case management, nothing in this amendment adds to the powers that already exist. What is more, it might be harmful. If one appears to give specific powers in the case of serious fraud, that could cast doubt on whether powers already given to the committee are sufficient to allow it to make rules covering all criminal proceedings.
	The noble and learned Lord, Lord McCluskey, talked about lawyers becoming television presenters and presenting their cases in half or three-quarters of an hour. If the noble and learned Lord the Lord Chancellor were now in his place on the Woolsack, responsible as he is for the Legal Aid Fund I do not doubt that he would be absolutely delighted at the prospect. So too might members of the public be delighted to see cases presented in that way. Again, I do not for a moment underestimate the desirability of the points made.
	However—this is the second objection—I do not believe that welcome though better case management is, it would be a complete solution in complex fraud trials. I have previously pointed out that one of my major concerns is that the effect of measures designed to reduce a case to manageable size may be that crucial evidence cannot be heard by the jury. How is case management achieved? Frequently, the judge requires a case to be severed, or the prosecution recognises that it must sever a case by taking out defendants or counts. In the Maxwell case, for example, although the prosecution, the judge and almost all defence counsel believed it would be best if all matters were heard together, the view was that this would be unmanageable before a jury, and so it did not happen.
	Where efforts are made to reduce the amount of evidence put before juries, the effect can be that the defendants do not face justice for the full extent of their criminality. In one well known case the defendant pleaded guilty to two out of 22 counts and received a non-custodial sentence. The trial judge had excluded a substantial body of evidence, not because it was irrelevant or inadmissible, but because it would be unimaginable for the jury, and would make the trial unacceptably long.

Lord Davies of Oldham: My Lords, with the leave of the House, I should like to repeat a Statement. The Statement is as follows:
	"I am today publishing a White Paper on the future of the BBC entitled A Public Service for All: the BBC in the Digital Age. It does exactly what that describes.
	"We live in an era of change. In broadcasting, new technologies are leading to vastly more television and radio channels and new media services. The BBC's charter needs to create a BBC strong enough to thrive in the new environment and flexible enough to adapt to new challenges. Over 70 per cent of households now have digital television. As digital delivers ever more choice, some describe the BBC as an anachronism. The Government disagree. More importantly, the British public disagree. Our unprecedented engagement with the people of this country—10,000 of whom wrote to us—has shown that people right across the country want a strong BBC, independent of government, and Parliament, and responsive to public wishes. The new charter gives the public the BBC that they want.
	"The Reithian principles to "inform, educate and entertain" will be maintained, but we will give audiences and competitors greater clarity about what this means in practice. We will give the BBC six new purposes: sustaining citizenship; promoting education; stimulating creativity; reflecting the identity of the UK's nations, regions and communities; bringing the world to the UK and the UK to the world; and building digital Britain, where the BBC will act as a trusted guide.
	"There was strong public support for this. At the same time, licence fee payers told us it all sounded a bit worthy. What they cared about most was getting BBC programmes that they wanted to watch and listen to. So the White Paper makes entertainment central to the BBC's mission. The BBC should continue to take fun seriously, engraining entertainment into its services. This is not about writing the BBC a blank cheque or chasing ratings through copy-cat programming. It is about ensuring that the BBC delivers what licence fee payers deserve: quality and distinctiveness.
	"But the BBC's governance structure has become anachronistic. The BBC needs a new form of accountability to licence fee payers, as the BBC's shareholders. Our new arrangements will make the BBC closer to the people who pay for it and more accountable to them. In a step change for the BBC's governance, we will abolish the BBC governors and replace them with two new bodies: the BBC Trust and a separate executive board. The trust will be the licence fee payer's voice. It will act as a proxy for the BBC's shareholders, making it the first public interest body on this scale the country has ever seen. There has been nothing like it before.
	"The trust will oversee the executive board, whose own job will be to run the BBC's services. There will be clear separation of responsibilities between the trust and executive board. Although the trust will be the sovereign body of the BBC—its word will be final—the new charter and agreement will prevent it doing the executive's job. This is critical to maintaining the objectivity required to generate public confidence. This truly is a step change in the governance and regulation of the BBC. It is a unique solution for a unique organisation in unique circumstances.
	"An important part of getting the best programmes to the screen is competition for quality programmes. The White Paper requires the BBC to operate a commissioning system which balances in-house production of the scale necessary to deliver the BBC's wider public service role with encouraging competition for quality between in-house, independent and external producers. This new 'window of creative competition' should result in the independent quota of 25 per cent becoming genuinely a floor, and not a ceiling.
	"I repeat our welcome in principle for the BBC's proposals to move a significant amount of production to north-west England, helping to ensure that the licence fee is used as venture capital for the whole nation's creativity. The trust will need to satisfy itself that the plans represent value for money on behalf of the licence fee payer.
	"The BBC will continue as the cornerstone of public service broadcasting. We are equally committed to sustaining a dynamic commercial sector. We are putting in place a 'triple lock' system to ensure the highest standards of accountability. First, the trust will issue licences to the executive board for running each BBC service. Secondly, BBC content will have to have distinctive characteristics, such as being original, of high quality, challenging or innovative. Thirdly, a public value test will be applied to all new BBC services or significant changes to existing services.
	"Responding to concerns raised on the Green Paper, I am happy to clarify that whenever the trust carries out a public value test, Ofcom will provide the market impact assessment to guarantee rigour and ensure wider public confidence. We will also put in place a new duty on the trust to have regard to competition issues; ex ante codes in specific areas that have the potential to raise competition concerns; an overhauled fair trading regime; and a fair, transparent complaints system.
	"The White Paper also confirms that the BBC will be fully licence fee funded for the next charter. There will be future reviews into the scope for other methods of funding the BBC beyond 2016 and the possibility of distributing public funding—including licence fee money—beyond the BBC.
	"The process of deciding the next licence fee settlement has started. Licence fee payers and industry will help form our conclusions. We will expect the BBC to achieve a large part of its funding through self-help and the trust will need to make tough decisions about how resources are allocated within the boundaries of the settlement. To help the trust exercise stewardship of the licence fee, the relationship between the BBC and the National Audit Office will be strengthened within the existing arrangements.
	"Despite past predictions, public service broadcasting, led by the BBC, remains the bedrock of today's media. If it is to thrive in the digital age, the BBC must remain future-proof and politician-proof. We are optimists about the long-term future of the BBC, but it cannot take its position for granted. It must develop its role over the next 10 years, strengthening its accountability, bringing in new generations of viewers and listeners and building a consensus around the value of its place in Britain. The White Paper gives it the means to build that consensus and I commend it to the House".
	My Lords, that concludes the Statement.

Viscount Astor: My Lords, I thank the Minister for repeating the Statement. The BBC is a unique, much loved and much cherished institution. It stands out as a beacon of excellence, across the country and across the world. It is incumbent on us to ensure that the BBC we pass on to future generations is equipped to flourish in the decades ahead. All over the globe people turn to the BBC for an independent view of world events. The Conservative Party is committed to ensuring the future of the BBC and that it remains the best public service broadcaster in the world.
	That is why this White Paper is somewhat of a disappointment. It singularly fails to meet the main challenges that now face the BBC. It was supposed to provide us with a springboard to the new digital age, but it is simply not fit for the purpose. It goes only halfway and will not last for the 10 years of the new charter and agreement. Digital television, broadband, the internet, podcasting and on-demand viewing are transforming the world in which the BBC operates, and will change for ever the future of public service television in this country.
	It is so important that the BBC, which is bound by the highest standards of quality, impartiality and integrity, makes decisions in the interest of the public, and not in the interests of Ministers and the Government. That is why the BBC needs a proper, independent regulator, something missing from the Government's proposal. Why is Ofcom able to regulate every other broadcaster in this country, but not the BBC?
	The Government have rejected almost every proposal of the all-party House of Lords Select Committee on the BBC Charter Review, chaired by my noble friend Lord Fowler. They have rejected the case for the BBC to be established by Act of Parliament, making it accountable to Parliament and not just to a department of the Government. Instead, we have the BBC trust and executive board proposed by the Secretary of State, but they are really no more than a separate set of BBC governors at another building, with twice the cost and twice the number of appointments to make. It ultimately fails adequately to separate governance and regulation. That is what is important. We must have a system in place whereby those regulating content, impartiality and standards of the BBC see themselves as responsible to the licence fee payer and to Parliament, not just to the Government and the Secretary of State.
	The BBC is a unique organisation in a unique position, and because of that we must ensure that that position is not abused to the detriment of other broadcasters or, indeed, the viewing public. We cannot have a situation where a publicly funded BBC is allowed to outspend and outgun its competitors with the result that it prevents innovation and stifles competition. The public value test is a good concept, but Ofcom should be involved with the test, not just limited to producing a market impact assessment.
	We agree that funding by the licence fee is still the best way forward for the BBC. But we know that there will be an unprecedented increase in the funding of the BBC. We shall see an increase from about £3 billion to about £5 billion by 2013. Why does the settlement require such an increase? I am afraid that the deft hand of the Chancellor of Exchequer is at play. The Government are using the charter renewal as a Trojan horse to pay for their policy of digital switchover. The settlement is purely a mechanism to fund government policy. In the process, the Chancellor will grab between £2 billion and £5 billion as a result of selling off the freed up analogue spectrum after switchover is complete in 2012. He has a history. He made £27 billion from the sell-off of the 3G networks, and is looking to repeat the exercise. That will fall on the viewing public and licence fee payers. In an example of the stealthiest of stealth taxes, the Chancellor hopes that by using the word "spectrum", the unsuspecting public will not realise that the Chancellor and the Government have imposed the first new Labour television tax.
	Now that it is official that the licence fee is a tax, the National Audit Office should be involved in scrutinising licence fee bids. The cost of switchover is forcing the increase in the licence fee to an eventual £180 a year, which will hit the poorest in Britain and those on low on fixed incomes. What help will the Government give to those who cannot afford the cost of digital switchover? Indeed, what help will be given to those who cannot receive digital television in the future?
	The White Paper, the draft Royal charter and agreement, and the regulatory impact assessment will take careful reading. I cannot hope to deal with the many issues today. I shall just say that I am glad that "training" still features strongly in the BBC plans. I am disappointed that the provision of news is not one of the six purposes, or even the seventh purpose, outlined by the Secretary of State.
	The BBC is one of the great brands of the world. That brand combined with continued quality programme making will allow the BBC to compete and thrive in the varied and many ways of delivering content to consumers. We want to ensure a future for a stronger and independent BBC. The Government have undermined that by putting at risk the public confidence in the licence fee and failing to ensure good governance and the integrity of the institution.

Lord Davies of Oldham: My Lords, the public has great confidence in the BBC, which has been operating under charter, not statute, throughout its years of existence. In order to sustain his contention, the noble Lord would have to establish that there is substantial public disquiet about the inability of Parliament to hold broadcasters to account. I do not believe that there is that disquiet. The Government's wide consultation up and down the country on governance found no such demand. Instead, they found that Parliament needed a greater role in its relationship with the BBC.
	It is not as if the BBC is free from political comment. I do not think that a day goes by without some aspect of the BBC being subject to some public comment that is often highly political and contentious. So it should be in a free society. But that is different from suggesting that we should transform the BBC by replacing the charter under which it has operated throughout its years of existence with huge success, for which Members on both sides of the House have commended it, with a different structure of supervision and control, for which the case, in my view, has not been made.

Lord Redesdale: My Lords, I do not think that I will put all the blame on the French nicking our gas. That is an excellent expression, which I did not expect to hear in this House. The question was presented in another place purely and simply because gas hit 255p per therm on the spot markets. The Minister has said that market mechanisms will take their course. The gas price has dropped to 150p per therm, but market mechanisms are not working in the European gas market, because throughout this winter, every gas consumer in this country has paid a significantly higher price than their European cousins have paid for their gas.
	The Statement states that the cold weather was to blame—it is forecast for only a few more days—and that the interconnector was underused. That is very strange because at a spot price of well above the European average, the interconnector should have been fully operational. The fire at Rough is given as a prime reason for the jump to the spot price of 255p, but the problem with that is that the fire at Rough took place a month ago and gas supplies have met demands since then. One problem that we face is the expectation that we will run out of gas because we have produced a lack of storage and supply due to the unforeseen decline in the North Sea gas fields. But that is a real issue.
	I have only a few questions for the Minister. What is the Government's view on making market mechanisms work in Europe? With the consolidation of the gas giants in Germany and France, it seems that we will face added, rather than fewer, problems. I especially question the merger between Suez and Gaz de France. What support is the Minister giving Neelie Kroes, the EU Competition Commissioner, in questioning that merger? It would seem very strange if that merger took place and then the EU Competition Commissioner decided that there should be a breakdown. That would cause quite a few problems. What provision is being made for next winter? It is no good crying over the position now. But, notwithstanding the gas interconnector that will come from the Norwegian fields at Easington, is the Minister concerned about the difficulties in providing added storage capacity, especially the problems with planning? Finally, what steps are the Government taking to monitor fuel poverty over this period? Many older people around the country are affected by the ramping up of gas prices from all the companies. I hope that the Minister will look at ways not just to monitor this but also to alleviate that problem.

Lord Foulkes of Cumnock: My Lords, does the Minister agree with me that Malcolm Wicks is an excellent energy Minister, well respected throughout the energy industry, contrary to what noble Lords opposite said, and that he is getting to grips with changing energy policy—the "dash for gas" that we inherited from the previous government. Is this not a third wake-up call, along with the huge increase in the price of gas and the way in which the Russians turned off gas to Ukraine, reminding us that we need diversity as well as security of supply in energy generation? Will the Minister ensure that the energy review is published as quickly as possible so that we can end this increasing dependence on gas and have a proper, diverse energy supply, including nuclear, clean coal and renewables?

Lord King of Bridgwater: My Lords, is this not the least surprising statement to anyone who has been listening to the continual warnings by those in the energy industry of the narrow situation that we could face? I am glad to hear that the Minister is at last supposed to be getting to grips with the situation, but isn't it far too late? That is borne out by the present troubles.
	The Minister has referred to the weather being unfavourable and rather colder but I seem to recall that back in the autumn we were getting warnings that we were in for a really hard winter. Thankfully, although there is a cold spell now, that never materialised, but what on earth would have happened if we had had that really cold winter, which the Government were supposed to be warned about?

Lord Jenkin of Roding: My Lords, the Government have now recognised that the gas supplies from the North Sea are running down more quickly than had been anticipated. Does the Minister agree that if one looks at that Statement rather more closely, one sees that the supplies from the larger gas fields seem to have been running down more quickly than was anticipated and this has not been matched by new sources of supply from the North Sea to make up for that. Do the Government and the noble Lord's own department believe that the Chancellor's swingeing tax increase on the North Sea oil producers is likely to help or hinder that situation?

Baroness Warwick of Undercliffe: My Lords, in speaking to Amendment No. 2 tabled in my name, I, too, pay tribute to my noble friend for her willingness to listen and to consult, and for the careful way in which she has sought to engage with stakeholders to find ways of ensuring that bona fide international students are not deterred from coming to the UK as a result of the changes in wider immigration legislation.
	The amendment is similar to one that I tabled on Report. My intention in returning to the issue is not to force the matter to a vote—I should like to make that clear at the outset—but rather to provide an opportunity for the House to probe the Government one final time on the shape of the proposed administrative review. Given the planned abolition of the right of appeals in entry clearance cases, this becomes a matter of central importance for me and for Universities UK, in which I declare an interest as chief executive.
	The Government have recognised that even under the new points-based system mistakes may well occur, so they have reiterated their commitment to introduce an administrative review scheme to ensure that, where an entry clearance decision is disputed, there is an opportunity for applicants to seek to have the decision reconsidered. Last week, the Government published their Command Paper Making Migration Work for Britain. It sets out in more detail what the points-based immigration system will look like.
	There is no doubt in my mind that the points-based system is likely to improve the quality of initial decision making. Some of the changes that the new system will introduce are very welcome. The emphasis on objective decision making, institution-specific visas and efforts to produce a quality-controlled register of approved education providers are all welcome. But some significant questions still need to be answered. Crucial, from my point of view, is that the design of the promised administrative review is still unclear. Indeed, I am worried that the wording of the relevant section—paragraphs 52 to 54—will not provide the wide scope I had hoped for, but might limit the review to a consideration only of the facts. That is a very important issue, because there is a general recognition that not all subjectivity can be removed from the process. As the immigration Minister, Tony McNulty, said in another place:
	"100 per cent objectivity is a fool's errand . . . It is not about simply ticking boxes and adding points up, although that is a large part of the measure".—[Official Report, Commons Standing Committee E, 20/10/05; col. 116.]
	I have shared with the Minister and other Members of the House, for whose support I am enormously grateful, an outline of the scheme that I would like to see. In my view, the administrative review should require entry clearance officers to provide detailed written reasons for the refusal of an application; should allow all unsuccessful applicants to request a review; should be overseen, preferably by the regional tier of UK visas staff; should enable sponsoring institutions to make representations on behalf of applicants; should be completed within a reasonable timescale; and should allow for the clarification of existing evidence. In addition, it is important that the entry clearance monitor should have oversight of the operation of the scheme. I hope that the Minister will be able to reassure me on these points.
	Perhaps it would be useful if I ask four specific questions. Paragraph 53 of the Command Paper states that administrative review will be available if,
	"an applicant believes a factual error has been made in the consideration of his application".
	If the Minister accepts, as I believe she does, that there will be some element of subjectivity in the process, can she reassure me that the administrative review will be able to consider judgments and points of law, as well as facts? The Command Paper states, on page 12, that the points-based system will be supported by administrative review, where appropriate. Can the Minister confirm that, as she said to me on Report, administrative review will be available to anyone who is refused a visa under the new system? Will she undertake to consult fully on the design of the administrative review and to publish the final scheme so that all parties know what to expect?
	Finally, many in this House are uneasy about the fact that, under the system as we currently understand it, entry clearance officers and their immediate managers will be responsible for reviewing their own decisions. If the Minister accepts that there will be cases where subjective judgments are involved in reaching a decision, does she agree with me that there should be an opportunity to involve a third party—someone within the immigration system but not involved in that initial decision—in the review? Will the Minister consider, for example, how the regional tier of UK visas staff might be involved in the administrative review?
	I have shared these questions with my noble friend the Minister in advance of this debate, because this really is the last opportunity for us to secure reassurance, on the Floor of this House, about the operation of the new system during the passage of the Bill. I hope that my noble friend and, indeed, all Members of this House will understand that I have pressed this point simply because I want the system to be as fair and effective as possible. I know that that is a shared goal and I look forward to the Minister's reply.

Lord Avebury: My Lords, I thank the Minister for being as good as her word and letting us have the Home Office consultation on the points-based system before we came to Third Reading, although I obtained a copy only on Thursday evening—I would have liked longer in which to study it and to consult others. A great many questions still remain unanswered, as we have heard from the noble Baroness, Lady Warwick. I do not think that we have enough information to assess how the system is likely to work; nor do I think that anybody could have taken up the Minister's invitation in col. 534 of the Official Report to submit examples of wrong decisions made under the existing system that would not have been dealt with correctly under the new one. We have still not been told what points will be awarded, except in tier 1 and tier 2. Nor have we been given any details of the financial securities that will be required of applicants coming from certain unidentified countries, particularly those who have certain unspecified characteristics. If the Minister would care to fill in those blanks, we could see what could be done to provide her with comparators. Of course, by that time it will be too late for us to do anything about it.
	Under the points-based system, decisions on entry clearance and leave to remain are supposed to be based on objective criteria only. As the noble Baroness, Lady Warwick, has said, there is no such thing as total objectivity. In those cases where the decision is made entirely on the facts, the necessity for appeal is eliminated; we concede that. An offer from an approved institution will be a proxy for intention and ability to study, backed by the sponsors undertaking certain responsibilities for the student while in the UK. There is an equivalent duty on employers when the application is for entry clearance to work. That is, as the noble Baroness has said, a marked improvement on the present system, although as we already have a register of bona fide universities and colleges I still do not understand why this scheme could not have been realised in the educational sector by changes to the Immigration Rules, as I suggested at an earlier stage. In the Minister's letter to me of 23 February, she said that it could not be done until,
	"the system of sponsorship is up and running and underlain by certain clearly defined responsibilities for institutions and appropriate monitoring and compliance functions within IND".
	If the institutions' offer of a place is to be treated as a proxy for intention and ability to study—as we agree it should—what more will be required of the institutions? The new document says that pilots are running at 30 institutions, which are required to report non-enrolment or discontinuation of studies by any overseas student to whom a place is offered. I assume that this will include special provisions for recording any who drop out temporarily for reasons of ill health or bereavement, for example. Is it the intention to use this reporting system to identify and return those who use the offer of a place to gain entry for some other purpose? Do the Government have any reason to believe that, with fees at their present high levels, this is a problem? Or are the pilots meant simply to confirm, statistically, that where particular institutions offer places the students normally comply with reporting conditions and complete the courses?
	The new document does not explain how the two classes of educational institution, A and B, are to be defined, and on what criteria the number of points each will attract is to be determined. There is even greater uncertainty over how the applicant will demonstrate that he has sufficient funds to cover fees and living expenses. The document does not say so but, although an applicant is awarded points for the amount of money that he can produce up front, there must be a subjective element in assessing whether he will be able to sustain himself for the duration of his course. With regard to the financial securities that will be required of those whose personal circumstances or migration route suggest that they present a higher risk of breaching the Immigration Rules, the Government say that they have listened to the objection—raised, for example, by the NUS—that demanding securities will make it harder for students from the poorest countries to come here. They will therefore require securities only where objective evidence shows that taking a particular route or belonging to a particular class means that migrant students are disproportionately likely to breach immigration conditions.
	It is only too likely that the routes in question will be taken by those from poor countries. Although the procedure may reduce the overall number of students who breach their conditions, it may also skew the overseas student population towards the richer countries. What does the document mean by "personal circumstances"? Is this related to the financial circumstances of the student or his family, so that if, for instance, he has no bank account or his parents are both unemployed, he will be disqualified? That is one of a great many uncertainties that remain.
	If the Government insist on introducing these financial guarantees, why could they not do so under existing rules? Rule 57(6) already requires that a student should be able to,
	"meet the costs of his course and accommodation and the maintenance of himself and any dependants without taking employment or engaging in business or having recourse to public funds".
	At the moment, the published Immigration Directorates' Instructions add nothing on how to assess the applicant's ability to satisfy this condition. Here is another area where pilots under the existing rules could have allowed different criteria to be tested before the new system goes live. I would like to know from the Minister why that was not done. An objective test of the student's ability to support himself could be implemented now; it would enormously reduce the number of appeals under the existing system.
	That brings me to the question of how long it will be until the points-based system is introduced. We have an amendment to Clause 62 saying that Clause 4(1) should come into force on a date to be appointed by affirmative resolution, as my noble friend has already explained. That is to ensure that the transition is properly managed and properly monitored by Parliament. I believe that it has been said that the timing would not be the same for the different tiers. However, if in each tier the proposed tests are first applied under the existing rules, there should be no problem. Tier 1 should be extremely easy to cope with because it does not rely on sponsorship, and tier 2, for skilled migrants with a job offer, could be the next, since there is already a provisional scheme for the points—as we read in the document that we have now been given—which could be read across into the rules.
	I have a couple of questions about the inclusion of ministers of religion in tier 2. First, would they be required to show competence in English, as in tier 1, and how would that be assessed? Secondly, although the treatment of prospective earnings as a material factor in gaining admission may be appropriate in other occupations, it is not necessarily appropriate for ministers or priests, whose value is not measured by their incomes. How will the system treat Buddhist monks who do not earn or handle money? I declare an interest as a patron of the Buddhist prison chaplaincy.
	For tiers 3, 4 and 5, it may be a long wait, which is why we on the Liberal Democrat Benches have been so desperately concerned to do something about the shocking defects that have been identified in the existing system by the previous monitor on entry clearances, Ms Fiona Lindsley, as we emphasised both in Grand Committee and on Report. We had hoped to see her final report—the first draft of which she submitted before she left office at the end of November last year—before this debate. The Minister told me in her letter of 23 February that the final draft was submitted in late January—I believe that it has now been narrowed down to 23 January—and that arrangements were being made to lay the report before Parliament. Seven weeks later and after several inquiries behind the scenes, including a personal approach to the noble Lord, Lord Triesman, followed up by a letter the same day and a Question on the Order Paper, Ms Lindsley's report still has not appeared. I am very unhappy that the Government have avoided a discussion on the recommendations that she has no doubt made on improving the present system, particularly as we now hear that the new system may not be introduced until 2008, which means that we shall have to cope with all the defects in the current system for at least another two years.
	Finally, I wish to make a couple of remarks about a meeting that the Chinese community had with the Minister, Mr Tony McNulty, about which I heard only just before I came into the Chamber. As your Lordships will recall, on previous occasions we have discussed the particular problems that arose with the Chinese community. I am very grateful to the Minister and her colleagues for the thorough way in which they discussed those with the representatives. However, at the meeting with Mr McNulty, the issue was raised that chefs were unlikely to have any formal qualifications. The Minister said that he recognised that chefs were not specifically addressed in the Command Paper and that it would be wrong to have a system that excluded ethnic cuisine chefs. He said that there would be a skills advisory board specific to each sector and that the Chinese and Bangladeshi restaurant communities would be consulted on issues of experience and remuneration levels and whether the relevant job was considered a shortage occupation. Incidentally, that is where I got the 2008 date from, because that was what Mr McNulty told the representatives. We had not heard that from any other source, so far as I am aware. It is a pity that we did not know earlier that there would be this long delay before the roll-out.
	The Chinese community expressed concern that the abolition of the sector-based scheme would create serious problems for the low-skilled workers category. The Minister acknowledged that and said that the solution was for them to talk to his team about the issues of remuneration, qualifications and shortage occupations. He went on to explain that,
	"for the new business to the work permit system, then if approved as sponsor, will always be on the A list".
	I did not express that very well, but that is how the briefing is phrased. I think that it means that every person on application would be classified as being on the A list until there was any information leading the department to think that they were not reliable employers. Again, that is something that we had not heard before—that new applicants, if they had not been involved in employing people from overseas previously, would always be classed as being on the A list until there was some reason to suppose that they were not reliable. That illustrates that even at this late stage people are still discovering a great deal of the detail about how the points system will work, which we might have been told at an earlier stage to our great advantage.
	On our amendment, the best that I can do is to quote Mr Donald Rumsfeld, who said, "We know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don't know we don't know". That is why we believe that the Secretary of State should have this power. It may never have to be used if the system is as wonderful as Ministers claim, though one of the knowns is that returning residents who have been abroad for more than two years for legitimate health or family reasons may now be excluded from their homes for ever under this scheme.
	We say that it is impossible to prove that every decision will be a matter of simple arithmetic. The partial description that we have of the points system leads us to conclude—as the noble Baroness, Lady Warwick, has said—that subjectivity has not been entirely excluded. It is only sensible and reasonable, then, to have this power in reserve.

The Earl of Sandwich: My Lords, perhaps I may say a few words about the position of migrant domestic workers. I have not studied the Command Paper but I understand from specialised agencies such as Kalayaan and Anti-Slavery International that have that this policy seems to run against what the Home Office has already said.
	Those agencies have been told by officials working on the points system that domestic workers either qualify as part of tier 2—which few can do, since it requires them to have NVQ level 3 or the equivalent—or will be given a maximum of six months leave, which cannot be extended. The idea is that the employer recruits a replacement domestic worker, from the UK or European Union, and sends the original worker home.
	In practice, the proposal means that migrant domestic workers would go underground. That is really contradictory when Home Office policy has been to ensure that there is no hidden slavery—an abuse taking place behind closed doors, where people are hidden away. The new proposals would put domestic workers at greater risk of such exploitation. I acknowledge that there is a mention of diplomatic employees but that is a small element in the total.

Baroness Anelay of St Johns: My Lords, I add my thanks to the Minister for the series of meetings that she has assiduously held on this Bill in an attempt to give assurances. Some amendments have indeed been brought forward, the most crucial regarding Clause 1.
	I shall refer briefly to Amendment No. 1 in the name of the noble Lord, Lord Dholakia. I do not propose to speak on it today. We are at Third Reading and I have said all that I wished to say at other stages of the Bill. I hope that the noble Lord will forgive me if I end at that point. However, I am grateful to the noble Baroness, Lady Warwick, for bringing forward her Amendment No. 2. She is right to do so because, as she says, this is the time for further clarification and our last chance to get assurances from the Government. The noble Baroness is also right to say that she does not intend to press the matter to a Division. We are all agreed that the points system must be made to work. To do that requires good will from all of us so that we get as much clarification from the Minister as possible. The noble Baroness, Lady Warwick, was careful in her arguments to address herself simply to the administrative review process itself. I will say one or two words about that in a moment—in support of her, I hope.
	When the noble Lord, Lord Avebury, spoke he rather opened Pandora's box by taking us into a debate about the points system. I do not see that as a problem, since at Second Reading we had no opportunity to debate that system. The Minister very constructively assisted the delay of Third Reading so that noble Lords could put questions about the points system today. I had rather thought that it might come up in the next group of amendments, so I had stuffed all my questions in there. I have given the Minister notice that rather than double up I will ask those questions now. In a moment when I go through those questions and test the patience of the House, noble Lords will at least know that in the next group I can be extremely brief.
	The noble Baroness, Lady Warwick, was very helpful to set out what she considers to be good practice with regard to administrative review. It will be important for the Minister now to go through that to say whether the Government see that the limbs of good practice that she has set out as being the ones that they wish to adopt. For example, she said that the entry clearance officer should provide written reasons for refusal. I hope that she would add "in the outcome of any subsequent review", as one needs to know how the process would continue. She also said that the review should allow for the clarification of the existing evidence. I hope that one would be able to submit further evidence and, if not, on what basis that would be denied. Overall, the noble Baroness has provided the good practice guide that the Government ought to follow.
	On the issue of the Pandora's box and the points system, the noble Lord, Lord Avebury, explained that last week the Government published a points-based system Making Migration Work for Britain. In another place, there was a Private Notice Question on that. I felt that it was not appropriate for me to clamour for that to be taken by way of a Statement in this House, because the Government had shown goodwill by delaying Third Reading so that we could debate it today. Therefore, I did not press for a Statement in this House, but it was so that noble Lords should be able to talk about the points system today.
	Like the noble Lord, Lord Avebury, I am grateful to Christine Lee of the North London Chinese Association for the very helpful briefing that she sent to Peers for this stage of the Bill. She makes some very pertinent points, which I would like to raise, and asks some questions that I would like the Minister to respond to. I have given advance notice of those, because they are in detail. In addition, the noble Lord, Lord Avebury, referred to the fact that Ms Lee and her colleagues had a meeting today with the Minister, Mr McNulty. It would be very helpful if the Minister could give an update on that. I have been provided with a summary synopsis of the meeting by Ms Lee, but I am not sure whether the Minister has seen that yet. It may be that we are going to have to conclude any discussions about that by way of letter following this debate; or indeed it may be appropriate for the Minister to answer questions on that when this Bill is debated in another place this Thursday and it takes Lords amendments.
	On tier 3 of the points system, the Chinese community points out that it is important to know what will happen to low-skill workers. Will low-skill workers including waiters, waitresses, kitchen porters and catering assistants fall within tier 3 of the points system? The Minister will know that the Bangladeshi, Pakistani, Chinese and Indian communities place a heavy reliance on those workers, particularly in small businesses. They point out the problem areas that arise if they have to recruit from communities that do not reflect their ethnicity, such as communication, team cohesion, training needs and deployment.
	On tier 2 of the points system, will the Minister confirm what requirements will be needed for restaurant managers and chefs to fall within tier 2? Would that include those chefs and managers with at least three years' experience? The Minister will recall that Mr McNulty said categorically that chefs would fall within tier 2, but the section describing the architecture of the new system is not clear about that. It seems to set a points menu that could deny the opportunity for chefs and most managers to come here. That is at pages 25 and 26 of the Government's document.
	Would it be right to say that in practice a chef would either have to satisfy a requirement that the job offer had been made in a shortage occupation, or that the job offer passes the test that the applicant would not displace a worker in the domestic UK market, plus the additional test that he or she would be earning a minimum of £21,000 a year in the UK from a registered employer? I realise that some points can be earned by having a Masters degree or a PhD but, without intending to underestimate the ability of chefs, that does not seem particularly relevant to the employment of most chefs in this country.
	Last week, the Minister offered me the opportunity to meet her. I raised questions about this then, with regard particularly to the test of £21,000 a year as the qualifying salary. Will that £21,000 be expressed merely in monetary terms, or do the Government intend to take into account benefits in kind when calculating that qualifying salary? I realise that we have asked a lot of questions today on an opening group of amendments, but I anticipate that if the Minister is able to satisfy us some of the remaining groups may pass a little more quickly.

Baroness Ashton of Upholland: My Lords, I am extremely grateful to noble Lords for their kind words about the work that I have done and also about the work of officials. They have been magnificent in their efforts.
	I start by saying to the noble Lord, Lord Avebury, that I made sure that the paper was sent to him on Tuesday 7 March as it was published, and he was invited to a meeting that his noble friend Lord Dholakia had with me and the Bill team on Thursday of last week, when we went through all the points that were raised. I apologise if for whatever reason that did not get to him or he did not get notification. As I indicated, I tried to keep my promise to make sure that noble Lords received copies as it was published, had a chance to read it, and had meetings with me and my officials to go through it. I will try to answer all the questions that the noble Lord has raised as best I can. If I fail to do, so I will ensure that they are answered properly. I would not want anyone in your Lordships' House to think that I did not try, even if I clearly did not succeed.
	The noble Lord, Lord Avebury, raised the question that I want to deal with now about the independent monitor. A letter was sent to him yesterday and e-mailed, which included a suggestion that the noble Lord meet my noble friend Lord Triesman, who is concerned to pick up the points that the noble Lord raised. It has taken me a little time to achieve that because my noble friend is often out of the country, but he is very determined to support the noble Lord in the answers that he seeks on that point.
	I point out as I said in the letter that the time delay in producing the report of the independent monitor is not unusual, in the sense that we need a few weeks to sort it out. I understand that there are 59 recommendations made in the report, on some of which we have to seek legal advice. I am keen that we get as much information as possible to the noble Lord.

Baroness Ashton of Upholland: My Lords, it is very common practice in my experience as a Minister that we are allowed as a department—whatever department it is—to look at the recommendations and determine our views. That is not uncommon. There is often a lot of appropriate dialogue between the organisations concerned. The few weeks that have passed do not form a substantive delay. Although I accept that the noble Lord will never accept my views on that, I have checked that this is not an unusual or unprecedented delay. I have made the offer about my noble friend Lord Triesman, and I am sure that the noble Lord will find him receptive to his points. He will deal with them far more adequately than I could conceivably do at this point.
	I shall deal with as many of the details of the amendments as possible. I am grateful that noble Lords have used the occasion, as I indicated, to talk about the points-based system. Not surprisingly, I am going to focus quite a lot of what I say on the administrative review, because in a sense it is at the heart of the acceptance of the points-based system. There was general agreement in your Lordships' House that the points-based system is a good thing; it is substantially better than the system it is replacing, and will enable more transparent, quicker and easier decisions to be made. This is to be welcomed. On that basis, the administrative review has an important part to play.
	On Amendment No. 1, tempting though it always is for the Government to take another power unto themselves, I intend to resist doing so. The issues that the noble Lord, Lord Dholakia, raised around, for example, the unaccompanied asylum-seeker children were well dealt with in Committee. We want to ensure that we capture those areas. Yet it is not right that we need an appeal system for the new points-based system coming into place. Issues that are or could be of concern about decisions will be dealt with by administrative review, so the principle of having an appeal system falls. On that basis it would be wrong for the Government to take a power unto themselves, because it would suggest either that we did not have faith in the system, or that we planned to change it, which we do not. If a new system were to be put in place, it should come to your Lordships' House by way of primary legislation, not secondary, because these issues are of such great importance. Tempting though it might be, I will resist that amendment.
	I turn to the commencement amendments also spoken to by the noble Lord, Lord Dholakia. I listened carefully to what the Select Committee on Delegated Powers and Regulatory Reform said, and it made no comment on that clause. The noble Lord will know that I always do what it tells me. Had it told me to do something, I would have done it. It is also important to recognise that we have had a great deal of debate on this, and that we are keen to have a normal commencement provision in the Bill. We wish to do that appropriately. However, the debate around these issues will not end, and I will come on to some of the ways in which we plan to continue the dialogue.
	My substantive comments start on the issues in Amendment No. 2, and specifically answer the questions raised by my noble friend Lady Warwick, which were echoed across your Lordships' House, especially by those involved in education. I will answer her questions so that my response will be firmly on the record, before coming to some of the broader questions. My noble friend sought clarification on four questions, and was kind enough to give me advance notice of them. I wanted advance notice to make sure I answered them properly, not for any other reason.
	The first question was: if I accept that there is an element of subjectivity in the process, will the administrative review be able to consider judgments and points of law, as well as facts? We have said that we want to ensure that there is little scope for subjectivity, which I think my noble friend accepts. If a person is refused, then the entry clearance officer's letter refusing the application will set out exactly why it has been refused, referring back to the criteria for which points are awarded. That is part of our commitment to transparency. Someone who is refused entry clearance under the system will be able to apply for administrative review. The application for review will have to set out which aspect of the decision, as justified in the refusal letter, was incorrect. This encompasses both judgments and points of law, where they are relevant to the specific reason for refusal.
	Secondly, my noble friend was concerned with the Command Paper saying that the points-based system would be supported by review where appropriate, and asked whether the administrative review would be available to anyone refused a visa under the new system. Yes, anyone refused entry clearance under the points-based system will be able to apply for administrative review. They have to allege that the decision was made in error on the basis of the entry clearance officer's refusal letter. We are arguing the "appropriateness" point to avoid people who might be being vexatious, or who should have provided evidence in their original application. On the basis that they are saying that they want a review based on the evidence provided, everybody will be entitled to claim.
	Thirdly, on consulting fully on the design of the review, and publishing the final scheme so that we all know what to expect, one of the things that has become clear working with my colleagues in the Home Office, and especially with the officials, is their decision to involve as much as possible a broad range of stakeholders, including those from the education sector—especially from Universities UK—in the design of the detail of the administrative review programme. I hope all those invited to participate will do so fully, because this is a real opportunity. The full details of the process will be published in Diplomatic Service procedures, and will therefore be official government policy.
	Fourthly, if I accept that there will be cases where subjective judgments are involved in reaching a decision, should there be an opportunity to involve a third party—someone within the Immigration Service, but not involved in the initial decision? The noble Lord, Lord Laird, felt particularly strongly about this as well. We have got to look at the detail of the design of the system, but I accept that in some circumstances there may well be good reason for a person outside the management chain to be involved, whether at regional or national level. As my noble friend will agree, we had a good meeting with some of her vice-chancellors last week, and discussed this at length. We talked about the different circumstances that could exist where one might wish to look outside. Noble Lords will not be surprised that it is particularly relevant in financial issues. For example, we considered areas where there might have been substantive issues of fraud or other kinds of financial irregularity. That might well be such a set of circumstances. I am committed, and have committed the Home Office, to there being such circumstances, though we hope to determine what precisely they are in discussion with stakeholders. The expertise that stakeholders can bring is critical to determine that.
	There will be such circumstances, but they will be limited, because our ambition is for a transparent system. If a mistake is made, it can be overturned quickly—quickly enough that the person is not affected in their desire to come either to work or to study in this country. It will be quick, but where circumstances seem appropriate—in a clearly defined way, working with colleagues in the university sector—there will be the potential for that to be the case. I hope that gives my noble friend the strongest assurance that I can give.

Baroness Ashton of Upholland: My Lords, I will commit the Government to doing that. There is no problem in doing that at all; it would be positively beneficial. As my noble friend will realise from our meeting with the vice-chancellors, there is a lot of expertise and experience, from both employers and the universities, that we want to tap to ensure that we capture the system appropriately. This may be the last Home Office Bill I ever do, but I have no hesitation in committing to that.
	I shall deal with the other issues that have been raised, particularly education. The noble Lord, Lord Avebury, asked what would be required of institutions as sponsors. Yes, sponsors will be required to report attendance. Also, visas will be granted for specific institutions, so in a sense they will be tied to that institution. Most of the institutions that have been in discussion with colleagues at the Home Office welcome this, because it gives them a greater degree of certainty. Yet there is an issue that needs to be thought about, and again there are discussions going on. We must find some way to be notified when a student has arrived but is believed to have disappeared—not that they are unwell, but have disappeared. That is important for immigration control, and officials are working with institutions to make sure that we are able to deal with those responsibilities appropriately. There is a general agreement that that is a good thing, as long as we get it right and do not make it onerous.
	Those institutions that conform with their responsibilities can expect to be rated A, and those where we find a less good record will be rated B. That will encourage the Bs to become As, we trust, in the way that they approach it. The noble Lord, Lord Avebury, identified the system from the Command Paper, and I will not repeat that at this point.
	On the point of the noble Earl, Lord Sandwich, about domestic service and slavery, which he linked, we have provisions in the Bill to prevent illegal working. We are concerned to ensure that, wherever possible, labour market needs are met from the UK market and the EU, as the noble Lord will know, so I cannot say anything specifically to him about how we might address that, except that the Home Office takes it seriously. Perhaps we can pick this up later. It should not necessarily hold up the Bill, but it certainly needs to be looked at so that we identify the problems clearly, as he has.
	The noble Lord, Lord Avebury, and the noble Baroness, Lady Anelay, raised issues about the Chinese community in particular. I note that they met with my noble friend today; I was grateful to receive two copies of the notes of that meeting. I was clearly looking puzzled, as I had not yet seen them. I have not yet had a chance to read them, but I believe it was a constructive meeting and hope it will have addressed some of the concerns raised along the way. I shall try to deal with all the points of the noble Baroness, Lady Anelay. I hope that she will leap up if I miss any.
	First, there is the question of the £21,000, and what is taken into account. The noble Baroness was helpful in our earlier discussions as to what these issues might be. Indeed, members of different communities have talked to us. On benefits, the obvious example is that somebody comes and is given accommodation, perhaps not only for themselves but for their family, and would therefore expect a lower salary. For the UK, I always think of those involved in the Church, who receive a smaller salary, but get their accommodation provided. That is also true in certain professions across the world of employment. There is a plan to find a way to allow those allowances to be taken into account, but the noble Baroness will accept that we do not want to see that as a substitute for paying people properly. There is a balance to be struck between recognising that people should be in receipt of a proper wage, and recognising the benefits. That balance is being looked at.
	The skills advisory body which will be responsible for monitoring sector shortages in all areas of the economy needs to take into account—

Amendment, by leave, withdrawn.
	Clause 21 [Offence]

Baroness Ashton of Upholland: moved Amendment No. 6:
	Page 10, line 27, leave out "effluxion" and insert "passage"
	On Question, amendment agreed to.
	Clause 34 [Offence].

Lord Avebury: My Lords, in this group of amendments we return to the question of who should be authorised to arrest, detain and search passengers arriving at United Kingdom ports of entry, or the juxtaposed control force at Calais and Dunkirk, which began operations on 1 March 2004, and in Brussels at the Gare du Midi, Paris, Lille and Calais Fréthun, for passengers on Eurostar, since early 2004. Your Lordships may recall that we expressed particular concern about the delegation of those powers to private contractors at the juxtaposed controls, in particular, where the person exercising the power will be a foreign citizen subject to foreign laws and to only intermittent oversight by the Chief Inspector of Prisons and the Children's Commissioner.
	When the Chief Inspector of Prisons appeared before Sub-Committee F of your Lordships' European Union Committee on 1 February, she said that she had just produced a report on the Calais arrangements. She did not know what others were envisaged, but she had the power to inspect Calais and had just done so. Will the noble Baroness confirm that the chief inspector and the Children's Commissioner have the power to go into all the other juxtaposed control points that I have mentioned?
	The chief inspector went on to say that she did not believe that there were sufficient measures in place to take account of the special needs of children in terms of the decision to detain, the effect of detention or removal and what happens afterwards. She expressed the view that the Children's Commissioner also had concerns about the treatment of children and what happens when they are removed.
	The chief inspector says that she is not satisfied with the arrangements for Calais and that she has not looked at them anywhere else. So I think that we were justified in raising those concerns both in Committee and on Report. We understand that the Children's Commissioner has been to Calais and that he has been in touch with his French opposite number. Is the noble Baroness satisfied with the arrangements made for vetting staff to be employed by private contractors? Does she know whether there is an effective sex offenders register in France, such as will ensure that no person is employed in a capacity that will give him those powers?
	The Minister said:
	"All persons will be checked for the existence of a criminal record in France. These records contain all charges or other issues around sex offences".—[Official Report, 7/2/06; col. 577.] 
	We are not yet in a position to assess the merits of the French system of child protection, but there have been criticisms of some aspects of immigration detention at ports by the French from the Défenseure des Enfants. In particular, she criticised the treatment of children held at Roissy airport in January 2005 and, just last month, she received a letter from the Collectif de Soutien d'Urgence aux Réfugiés about the plight of unaccompanied children from abroad in Calais. Previously, we spoke about the controls at Calais, but there are other places in France where there are juxtaposed controls. In addition, we should not overlook the Gare du Midi, in Brussels, where completely different arrangements may be in place. We know nothing about whether there is a Children's Commissioner in Belgium or whether there are arrangements for ensuring that people employed at the Gare du Midi are subject to sufficient controls as we would see them in England.
	The Minister said in her letter to me of 23 February that, since the control over who accesses the UK control zone in northern France is solely a matter for the UKIS, we would extend the right of access to the Children's Commissioner. I repeat the question: do the Children's Commissioner and the chief inspector have the same rights in the other control zones in France and Belgium?
	The Minister also said in her letter that the code of conduct applying to contractors' staff with those powers would be the same as it is for detention custody officers, but that code was part of the operational policy standards and procedures, which are agreed between the contractor and the detention services, which,
	"follow the principles of PACE but cannot be placed in the public domain for reasons of commercial confidentiality".
	I want to challenge that statement; this is an additional reason why we are wary of the use of private contractors. We do not agree that commercial confidentiality should be used in that way. As long as those services are carried out by public servants, we know what code of conduct they must observe but, now that the operations are being privatised, the code is secret and we must rely on a general assurance about the principles on which it is based.
	The exemption of information provided in confidence to a public authority under Section 41 of the Freedom of Information Act 2000 is not absolute. It can be overridden under Section 2 if the public interest in disclosure outweighs the public interest in maintaining the exemption, as it manifestly does in this case. After all our debates in which concern has been expressed on all sides about the use of private contractors to arrest, search and detain people, including children of any age, whether accompanied or not, I cannot imagine a clearer case where the disclosure of information would be more essential if confidence in the proposals is to be sustained. I invite the Minister to reconsider the matter in that light, giving her notice that, if necessary, I will take the matter to the Information Commissioner.
	The fact is that neither Parliament nor the media nor NGOs will be able to scrutinise what happens in France or Belgium, and it is not likely that if there are irregularities members of the public will draw our attention to them, as often happens in this country. The magnitude of the powers being given to private contractors to deprive people of their liberty is being acknowledged by making the exercise of those powers subject to the Independent Police Complaints Commission, although it would be a resourceful complainant who discovered the existence of that right and managed to log a complaint during the short time for which he would be detained.
	As the noble Lord, Lord Brooke, commented in Grand Committee, those are powers more extensive than those that Parliament gave two uniformed community support officers under the Police Reform Act 2002, after what the noble and learned Lord the Lord Chancellor described as a long and hard debate. This is too far. I beg to move.

Lord Avebury: My Lords, as the noble Baroness is aware, the current wording that we have in our law follows that of the European Convention on Nationality 1997. The case for widening the power of deprivation so that it can be exercised when the Secretary of State considers it would be conducive to the public good has not been made out. The proposed test is one which has been used to deport or exclude foreign nationals since the Immigration Act 1971. The Government are equating migration control with deprivation of citizenship. We think these things are completely different.
	The Minister said various things in Grand Committee and on Report about the new test. In Grand Committee she said,
	"it is fundamentally wrong for those who engage in such activities"—
	meaning the "unacceptable behaviours" which has now been covered by the amendment—
	""and who have rights of residence elsewhere to be allowed to acquire and shelter behind their British citizenship".—[Official Report, 19/1/06; col. GC 274.]
	We are talking not about acquisition but about people who are existing dual nationals who have been deprived of their British nationality.
	The Minister also said of this provision that it was intended for use against Abu Hamza and how bad cases make bad law. Abu Hamza, who is a dual British/Jordanian citizen, was gaoled in February for seven years for inciting to murder and racial hatred, and is wanted on charges of trying to set up a terrorist training camp in Oregon. On 19 January in Grand Committee the Minister referred to the effect of this clause on Abu Hamza before he was convicted. However, the Companion makes it clear that the sub judice rule would have applied equally if it had been after his conviction while he still had a right of appeal. I have been personally warned in writing by the Clerks not to refer to a particular case under consideration by the courts, so I wonder whether the Minister sought the leave of the Leader of the House to refer to Abu Hamza under paragraph 4.58 of the Companion or how otherwise she justifies the reference she made to that particular case.
	Perhaps I may leave that and make a general comment. First, when a person has been convicted of a very serious offence and an extradition warrant in another jurisdiction has been issued against him, is it a matter of immediate concern whether by depriving him of his citizenship we can send him back to his country of origin? Secondly, if incitement to murder and to racial hatred is not contrary to the vital interests of the United Kingdom, then what is? The use of this wording has never been tested in the courts, but the Minister has said that she knows of cases where the behaviour of dual citizens is not a danger to the United Kingdom, but is nevertheless completely unacceptable. In other words, the Government would interpret the power in new Section 42 as allowing them to deprive someone of his British citizenship on a subjective assessment of his behaviour, whether criminal or not. That is indeed how they have always used the powers to deport under Section 3(5) of the 1971 Act. A person I know was arrested on terrorist charges in September 1985 and was acquitted after two trials and 15 months in custody. He was then deported in December 1986 using the 1971 Act powers. We do not want that type of kangaroo justice extended into the area of citizenship.

Baroness Ashton of Upholland: My Lords, perhaps I may begin with the comments of the noble Lord, Lord Avebury. He has implied that I may have said something inappropriate. I did not check with the Leader of the House and I am told by the Clerks that the rules governing sub judice do not apply to Bills, so the rule would not apply in that context. Further, in everything I say I ensure that I am given proper legal advice. If the noble Lord wishes to pursue whether I have behaved inappropriately, he is of course at liberty to do so. I recommend that he takes it up with the Leader of the House. However, as I was referring to a particular case where the powers that exist were being used and had been dealt with in 2003, I do not think I am in breach of anything. However, the noble Lord will make his own mind up about it.
	I agree with all those noble Lords who said that citizenship is seen, rightly, as a fundamental element of national and individual identity. We do not grant British citizenship lightly; nor do we contemplate deprivation of British citizenship lightly. The present criterion, referred to by noble Lords, is that the person has done something seriously prejudicial to the vital interests of the United Kingdom or an overseas territory. It is a very high test. When noble Lords invited me to indicate how often it had been used, I indicated that it had not been used because it was indeed a very high test. Our experience, on looking back over cases from the past two or three years, is that the test is too high and the hurdles too great.
	There are people living here who are—or have been in the past—war criminals, radical preachers and other activists who seek to provoke others, as well as those involved in serious and organised crime. Their activities are incompatible with the holding of British citizenship and their presence here is very much against the interests of this country and its people. For example, an individual involved in the large-scale trafficking of young women from eastern Europe for prostitution would not be covered under the current test, but could be under the test we are proposing. We are concerned that the holding of citizenship precludes the exclusion or deportation from the United Kingdom of such people. They are very few in number, but are none the less significant. We have various measures we can take against them. Our intention, of course, is to prosecute wherever possible, but we should also consider our options under immigration powers and elsewhere.
	Where one of these people holds citizenship, we will consider its removal to enable other actions, such as deportation or exclusion, to be pursued on the basis—as the noble Lord, Lord Avebury, said—of their dual nationality. Replacing the currently seriously prejudicial test with a conducive test would greatly facilitate our ability to deprive of citizenship and enable other effective action to be taken. That is the basis upon which we have put forward the proposals within this legislation. As I have indicated at previous stages of this Bill, the Government takes its responsibilities in this area seriously, and we believe it is right that the changes should be made. On that basis, I hope the noble Lord will feel able to withdraw his amendment.

Lord Dholakia: My Lords, I thank the Minister again. It was my intention to divide the House on this particular matter, but neither the Government nor the Opposition Benches would forgive me if I were to do so at this late stage. I do not intend to go any further other than simply to say this to the Minister: having attended some of the citizenship ceremonies that are being held up and down the country, I wonder if the Minister could give some thought not only to telling people what citizenship is all about, but also how citizenship could be taken away when they are disloyal to this country? I think we can put that argument forward in order that people are aware of their obligations and duties. I do not think we will get any further. The Minister has been kind enough to give a lot of leeway in a number of previous amendments. In light of that, I beg leave to withdraw the amendment.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord for again putting forward his views on this issue and for recognising some of the work we have done.
	We are not suggesting in what we are doing that people cannot come, but it is appropriate to use the good character test for the reasons I gave in response to the previous set of amendments. It is important to be clear that there are people who have committed serious crimes—examples of which I gave earlier—who we might wish to prevent gaining British nationality.
	To deal with the issues raised, our starting point was that we should not apply the good character requirement to those whose entitlement to registration derives from a provision of the 1961 UN Convention on the Reduction of Statelessness. The Government then additionally agreed to exempt from the good character requirement those seeking to register as British citizens on the basis that they are already British overseas citizens, British subjects or British protected persons and hold no other nationality or citizenship. They have not made a general exception for all such nationals or for all such stateless persons. The noble Lord's amendment, as he has indicated, would introduce such a general exception, and the effect would be far reaching, since a significant proportion of those able to apply for registration are people who have some other form of British nationality. This is in direct conflict with the Government's commitment to seeing that the vast majority of those seeking to register are of good character.
	As to the amendments relating to applicants under the 1997 Act, and British overseas nationals in general, these groups invariably have a right of residence in Hong Kong. Indeed, applicants under the 1997 Act are required to have been "ordinarily resident" there on particular dates—a concept which, while not necessarily equating to possession of a right of permanent residence there, at least implies lawful and, for the time being, stable residence in Hong Kong.
	In 1997, those with only British nationality were told that they would be admitted to the UK if conditions deteriorated in Hong Kong, not that they would be given British citizenship. I do not believe that we have reneged on the agreement that we reached. British overseas territorities citizens normally have the right of abode in the British overseas territory from which their citizenship derives. By contrast, the right of many of those eligible for registration under Section 4B of the 1981 Act to remain in their counties of current residence is at best precarious. It was this lack of a secure residence in any country that prompted the Government to announce on 4 July 2002 their intention to introduce a provision now having effect as Section 4B, and which at Report stage prompted us to move for their exemption from the good character test, which was welcomed.
	We do not accept the position of those qualifying for registration under the 1997 Act, or of British nationals in general is sufficiently close to that of persons presently entitled to registration under Section 4B of the 1981 Act to justify the support that the noble Lord's amendments clearly seek. Nor do we accept obligations towards stateless persons going beyond those we have accepted by ratifying the 1961 convention. It is always sad to disappoint the noble Lord, but I believe that the Government have the balance right. While wishing to continue to raise these issues, I am sure that the noble Lord will feel able to withdraw his amendment.

Lord Avebury: My Lords, the noble Baroness will be relieved to hear that I shall not go over the registration point again, but I wish to take issue with her on the last amendment and what she said about the rights of abode of people other than those covered by this amendment. She said that they were precarious and that that was the reason for including them in Section 4B. I do not agree with her. Apart from the case of Idi Amin, which was some 38 years ago, the other persons whom she says have only a precarious right of abode in the territories where they reside are in fact secure. I cite the people who live in countries such as Malaysia, for instance. It is a functioning democracy with rules of human rights. It will not suddenly kick out people who have a second-class British nationality.
	The noble Baroness said in a letter that she wrote to me the other day, for which I am most grateful, that there was a difference between the people that we are seeking to bring into Section 4B and all those other groups who are now enfranchised, as it were. I investigated whether there have been any other cases since the days of Idi Amin, when British citizens have been kicked out of a territory where they had what the Minister calls a precarious right of abode. I could not find any. If the noble Baroness has evidence of that, I shall be delighted to hear it. It is not a matter that we can pursue this evening, but once again perhaps we can put it on the list of unfinished business that she and I can discuss when the Bill has gone to another place. In the meanwhile, I beg leave to withdraw the amendment.

Lord Avebury: My Lords, will the Minister say in her reply whether she has had sight of the distinguished counsel's legal opinion that the noble Earl, Lord Listowel, was kind enough to copy to my noble friend Lord Dholakia and me, which contradicts the Minister's repeated assertion that if the amendment were passed the immigration system would become unworkable? I wonder whether the Minster has had time to study that. If she has not yet done so, could she do so and convey further advice to her colleagues in another place, who will have to consider the matter in further detail.

Baroness Anelay of St Johns: My Lords, I am breaking my vow of silence on the last six groups to contribute on this matter. I do not want to give the noble Earl, Lord Listowel, any hope that I would support requesting the Government to accept the amendment, but it is right to bring it back on Third Reading. This is one of those occasions when there is justification for further assurances to be sought from the Minister, because of the developments that have taken place during latter debates on this Bill.
	As I said on Report, this is an important matter because it affects directly the question of how the welfare of children is to be safeguarded and promoted when they are in contact with immigration services. The noble Earl's amendment highlighted what I believe is a significant tension between the policies of protecting children as set out in the Children Act 2004 and policies that require the speedy removal of those who have sought asylum here but have not been granted leave to remain. As well as policies that govern the treatment of those children caught up in non-asylum cases, we also have those in relation to asylum cases.
	I must say that that is a tension that I have found impossible to resolve in my discussion with my colleagues with other departmental responsibilities. So, admirable although the intentions of the amendment are, within the context of the Bill, it is impossible to make progress. However, the underlying issues need to be addressed by us all in future. We need to continue to challenge Home Office policies on that, even when we do not oppose them, to make the Home Office think how it is to take forward the welfare of children within the immigration system. I would be grateful if the noble Baroness would let us know whether it is being considered that one way forward could be to have cross-departmental work on the matter. That is often a proactive way forward, where one gets key people who have real enthusiasm for something to happen in departments to work together, so that we can try to reconcile the principles and contradictions between the Children Act and the responsibilities of IND.
	It would be useful to know what action the Minister for Children has taken and will take on the matter. If the noble Baroness is undecided on the matter, I should be happy if she were to write to me. That is something that we need to consider in future.
	As a result of the noble Earl, Lord Listowel, bringing forward the amendment at our previous stage, I immediately tabled a Written Question asking the Government how many children were detained in February this year in asylum removal centres. I was told that internal management information showed that, as at 20 February 2006, 37 children were detained with their families under Immigration Act powers, all of them at Yarl's Wood immigration removal centre. We would expect that. The children were all detained as part of families whose detention the Government considered to be necessary as a group. I was certainly interested to read the report by the Children's Commissioner of an announced visit to Yarl's Wood immigration removal centre last October, which was the basis of the evidence given to the Select Committee to which the noble Earl has already referred.
	It is important at this stage to note that disturbing conditions were highlighted in that report of children having to go through locked door after locked door. One needs only to read the report to see what picture is built up of the impact of detention on children. As ever, we say—at least, I say—that there are circumstances in which I must support detention. I know that I may part company with the noble Earl on that; however, I feel that, although the parents have chosen a particular road that leads to their detention, it is not the children's fault. Despite that, governments have to take hard decisions and one of them may be to detain children who are part of a family group.
	I was very interested to note in the conclusions that Yarl's Wood was trying to take significant steps to improve the conditions for children in its care. As a result of that, it is important for the House to ask the Government today not only to respond to the points of the noble Earl and say whether the Home Office has been able to take forward recommendations about how children's conditions may be improved but also, outside the remit of the Bill, to take the matter forward by pressing the Government in a series of debates. I return to where I started by saying that I cannot support the noble Earl, because I cannot see how the Bill will resolve this especially difficult issue.

Baroness Ashton of Upholland: My Lords, first, I want to deal with the issue of apologies. I shall say this only once to the noble Earl: he really, really, really should not apologise for bringing up these issues. I think that I speak for everyone in your Lordships' House when I say that we have nothing but admiration for how he constantly reminds us of our responsibilities for children. So please do not apologise any more. There is absolutely no need to do so. I apologise to the noble Earl for having left my place to go to the Box, but I am about to go off-message from my notes and it is always wise to warn my officials that that I am about to do so.
	I agreed with the noble Earl that I would say something about monitors. As I was dealing with the earlier amendment, I was wracking my brains to remember the one thing that I had forgotten. We were talking about the children's champion and I said that I would ask the children's champion within IND to consider the monitoring arrangements. I hope that that will address that point. Of course, the noble Earl can come back to me if that is not right. Perhaps I may also say how much we welcomed the children's commission report on Yarl's Wood and readily agreed that it should return to see the changes and initiatives that have been prompted by it. I know that noble Lords will want to keep in touch with it.
	As I said, I will go off-message on to my own notes. I have indicated at previous stages why I cannot accept the amendment. The noble Baroness, Lady Anelay, and I are in the same place on the issue: there are tensions in the system raised by the amendment. We could not accept an amendment under the legal opinion that I have—I will return to the points made by the noble Lord, Lord Avebury—because we believe that it could create circumstances where it could be used as a means of delaying or preventing people from being returned home, which we could not do.
	I turn to the point raised by the noble Lord, Lord Avebury. I saw the legal opinion for the first time this morning. It was received late last night but I was doing other work and I did not get to see it until this morning, so I have not had time to study it as the noble Lord requested. However, it has influenced me to the extent that I recognise that those involved in the Home Office need to study it because, as the noble Lord, Lord Avebury, said, it is an important legal opinion and we will deal with it appropriately.
	I agree with what the noble Baroness, Lady Anelay, was saying about the potential to think about the issues in a broader way. I and my noble friend Lady Scotland of Asthal sit on a committee that meets under the auspices of the Minister for Children, whom I cannot say has considered the issue in detail, but it might be an appropriate forum. I will steal that suggestion with grateful thanks and see if there is a way in which we might be able to take it further forward rather than setting up something separate to do so. I want to commit us to take the issue further forward because I cannot accept the amendment, and if the legal opinion stands I will not accept it; I make no commitment to it, but we are back to the underlying issues within the amendments of trying to make sure that children are properly looked after and catered for—if I may describe it like that.
	I want to commit to take the issue back to IND and ask it to carry out the kind of review that noble Lords are looking for across all the children's issues, part of which I committed to on earlier amendments, with a view to coming back to address the issues properly. The children's champion is in place—I do not know him but I know that the noble Earl was pleased to see that he is in that position. The noble Earl and I discussed earlier what process I need to follow. I want to add my personal commitment, because I have taken the Bill through, but I am committing everyone else too.
	I do not quite have an answer and perhaps the noble Baroness, Lady Anelay, can help me afterwards because we need a mechanism for the issue to come back. It may be through the traditional mechanisms of an Unstarred Question, a Starred Question or a Written Question, but I will commit that we will find a way of doing it: we will seek to continue the debate and to address the issues properly. On that basis alone I commit to take forward the issue, to review the legal opinion, to make sure that we are right to reject it for the grounds I have given but to seek to deal with the underlying issue, which the noble Earl and other noble Lords feel strongly needs to be dealt with. I hope that on that basis he will be able to withdraw his amendment.

The Earl of Listowel: My Lords, I thank the Minister for her undertaking that Jeremy Oppenheim, the children's champion at the immigration and nationality directorate, will meet the Children's Commissioner to discuss the issue; that she will carefully review the legal implications of the amendment; and that she will ensure that a report will come to me on the problem. I appreciate greatly the assurances. The response is most encouraging and significant progress has been made since Report stage.
	I also thank noble Lords who put their names to and spoke to the amendment in a helpful way. Perhaps I may recall that tonight at Yarl's Wood families will be behind bars, seeing the officers there in their prison-style uniforms with their long keychains. I recall one mother's question to me there on one of my visits: "What do I tell my five year-old child when he asks me what he has done wrong to be placed here?". It is a very difficult issue and it needs to be given careful attention. I am very grateful to the Minister for her encouraging response, and I beg leave to withdraw the amendment.

Lord Davies of Oldham: My Lords, in speaking to Amendment No. 1, I shall also speak to Amendments Nos. 2, 3, 4, 6 and 7 in my name, and will make a passing reference to Amendment No. 5 in the name of the noble Lord, Lord Clement-Jones.
	I am pleased to introduce these amendments, which give broadcasters and publishers greater certainty that editorial and journalistic practices will not be adversely affected by the London Olympics association right. This issue has been debated at some length both in Committee and on Report. There has been a clear uniformity of purpose on both sides of the House in those debates about what the Bill should do. I think that, without question, we all agree that the press should be free to report or comment on any aspect of the games without fear of infringing the London Olympics association right.
	Noble Lords have expressed concerns that the current draft of the Bill, specifically the term "necessary incident", would inhibit editorial freedom and would give LOCOG a wholly unacceptable role in judging what is classified as editorial content in relation to 2012. That was clearly never the Government's intention. What we sought to do in Schedule 4(8) was to provide an absolute fail-safe to ensure that journalistic and editorial activity would not fall foul of the London Olympics association right. But in creating that exemption for journalistic and editorial activity, we wanted to ensure that we did not create a loophole that an unscrupulous advertiser could exploit. That was the rationale behind the inclusion of the term "necessary incident" in Schedule 4(8); it was nothing more sinister than that.
	I have listened carefully to noble Lords on the Front Benches of both the Opposition parties and to the representations from broadcasters and newspaper publishers on this issue. Although our clear legal advice was that the current drafting of Schedule 4(8) would not have the effect that caused noble Lords such concern, I understand the confusion and unease that the term "necessary incident" created in the publishing and broadcasting industries. That is why I have taken the opportunity to table these amendments today to provide greater clarity about the effect of the exemptions in paragraph 8. My amendments would exempt publishing or broadcasting reports or information about the 2012 games from infringing the London Olympics association right. It is important that these exemptions will not apply to advertising materials that are published at the same time as, or in connection with, a report or information. In effect, that ensures that no form of advertising will enjoy the same exemptions as we have created for editorial and journalistic use.
	At this point, I should also put on record the fact that my amendments do nothing to change the effect of Schedule 4(8)(d). This paragraph ensures that publishers and broadcasters are allowed to advertise and use promotional time to publicise the report or information that they are providing. For example, a broadcaster would be able to promote or advertise the fact that it is running a current affairs programme about the Olympics or that its sports bulletin will include the latest information on the 2012 games.
	Although the debate on these amendments was triggered by consideration of the London Olympic association right, the principle applies also to the Olympic and Paralympic association rights created in existing Olympic symbols protection legislation. That is why I have tabled a similar amendment to Schedule 3, which amends the Olympic Symbol etc. (Protection) Act.
	In tabling these amendments, the Government have recognised the genuine concerns that the London Olympic association right could have adversely affected the freedom of the press—an intention, which none of us had. I note that the noble Lord, Lord Clement-Jones, who has argued so persuasively on this issue, has tabled Amendment No. 5, which has an effect similar to the amendments which I have put forward. I hope that now that he has had the chance to consider the new amendments, and the assurances that I have given the House about their effect, he will be satisfied that the Government have addressed his concerns. I therefore ask him to withdraw his amendment, and that all noble Lords accept the amendments that I have tabled today. I beg to move.

Lord Glentoran: My Lords, I would like to reiterate a lot of what the noble Lord, Lord Clement-Jones, has said.
	It has been an interesting Bill. We had some aggressive and strong lobbying from various parts of the advertising and media industries and one or two other people from different directions—including LOCOG—so it was not all one-sided. The Minister and his Bill team have been in serious listening mode throughout Committee and Report stages and in a number of meetings that we have had with the Minister in his office—sometimes with and sometimes without his team.
	We have worked to one end. As the noble Lord, Lord Clement-Jones, said, there have been some notable and strong speakers from all around the House—all with one objective: to do as much as we can to make sure that we get this Bill right in order to create the best possible environment from this House to allow local bodies and the Olympic Delivery Authority to go ahead and make the event that we desperately want to be a huge success. I want to finish by thanking the Minister, his Bill team and all of those who have been concerned in the whole way this Bill has been tackled. If democracy in this country could run on the sorts of lines that we have debated this particular Bill, this country would be a better place than it is.

Lord Borrie: My Lords, I add my thanks to my noble friend the Minister, particularly for what he has said in relation to the amendments this evening. When I spoke in favour of such amendments on Report, I spoke fervently—possibly aggressively—in favour of freedom of the press and may, thereby, have implied that the Minister was in some way less in favour of freedom of the press than myself. I know that is not the case and that he has been a fine example of the Government being a listening government. I am most grateful for his amendments this evening.

Lord Davies of Oldham: My Lords, I am grateful for all sentiments expressed, particularly because we are considering the withdrawal of an amendment which we have not even reached yet. That is an excellent bonus. I also pay tribute to my Bill team, who have done an excellent job. I hope that the spirit that we have all got with regard to this Bill will follow all efforts with regard to the Olympic Games. Indeed, I never had any doubt that—as far as this House is concerned, and as is true of the whole nation—that we wish the London Games in 2012 to be the greatest success that we have mounted in sporting terms. It is a fine ambition and we have done a small amount towards achieving that end.

Lord Davies of Oldham: moved Amendments Nos. 6 and 7:
	Page 50, line 3, leave out "as a necessary incident of" and insert "in"
	Page 50, line 10, at end insert—
	"(2) But the exceptions in sub-paragraph (1)(a) and (b) do not apply to advertising material which is published or broadcast at the same time as, or in connection with, a report or information."
	On Question, amendments agreed to.
	On Question, Bill passed, and returned to the Commons with amendments.
	House adjourned at twenty-one minutes before ten o'clock.
	Tuesday, 14 March 2006.